INTRODUCTION
In
today’s world hugely influenced by industrialization, capitalism
and market-oriented economy, competing manufacturers offer variety of
products and goods to consumers, most times these products have huge
similarities in nature, function and utility with little or no
apparent difference. To this end, consumers need to be guided in
their decision making and choices between the competing alternatives
with regards to the quality and characteristics of the products.
One
of the ways manufacturers/marketers distinguish their goods from
other undertakings is by creating a brand. Consequently, to create a
brand, the products must be named, packaged in a particular way or
bear other distinctive signs and that is where trademarks come in to
play.
The
use of distinctive marks such as words, numerals, alphabets, shapes
and combination of the aforementioned often referred to as
traditional or conventional trademarks to designate product lines and
brands has dominated the trademark regime of many jurisprudence
including Nigeria both at the International, Regional and Municipal
level.
Over
time, Debates have arisen on whether other non-Traditional and
Non-conventional marks such as colour, sound, holograms, tastes and
olfactory marks which is the major concern of this article can also
be registered as trademarks if they poses the character of
distinctiveness capable of distinguishing goods and products of one
undertaking from the other.
This
article examines the recognition of Non-traditional /Non-conventional
Trademarks in general with particular attention to olfactory marks
(Fragrance, scents or smell used interchangeably within the article),
taking a look at the Position of the European Trademark System (CTM)
and suggesting a way forward for the Nigerian regime vis-à-vis
olfactory trademarks.
WHAT
ARE TRADEMARKS?
Signs,
colours, alphabets and numeric, words, symbols, sounds, marks,
shapes, three dimensional structures and even fragrance or smell
affect our senses. They represent allusions which sometimes in
combination with our individual sentiments or even on their own
strength alone have great influence on our choices and decision
making. One or two or even more of these may be combined to form a
trade insignia known as trademark for the purpose of identification
of a business line or a product brand. Consumers will naturally keep
to products they are already accustomed to which they identify by a
sign or name.
A
trademark is any sign or mark that is capable of distinguishing the
goods, products or even business line of a person from that of
another. It is a sign that individualizes the goods of a given
enterprise and distinguishes it from the goods of its competitors.
Under
s.67
of the Trademarks Act1,
a
trademark is defined as a mark except in relation to a certification
trademark used or proposed to be used in relation to a goods for the
purpose of indicating, or so as to indicate a connection in the
course of trade between the goods and some persons having the right
either as proprietor or as a registered user to use the mark with or
without any indication of the certification trade mark, a mark
registered or deemed registered under section 43 of the Act.
The
Court of Appeal gave a simpler and clear definition in the case of
Freddo
v Ibeato2
The
court held that the essence of a trademark is that is that it
indicates a connection in the course of trade between the goods and
the persons having rights to the same.
From
the above definitions, it is convenient to simply put just as the
compound name “Trade+Mark’’ suggests, a trademark is any mark
used for trade for distinguishing between products. The purpose of a
trademark is to show distinctiveness and also indicate the origin and
sources of a product or service. Most business ventures and
undertakings rely on these marks to protect their goodwill and the
consequent patronage and ensure that competitors and other players in
the same sectors do not take undue advantage of their business
goodwill and acceptability.
WHAT
MARKS MAY BE REGISTERED?
It
becomes necessary to ascertain for the sake of clarity and
thoroughness of reasoning what constitutes a mark which can be used,
registered and protected as a trademark.
Most
international regulations gave non-specific definitions of what can
be registered as a trademark and no international treaties concerning
trademarks explicitly mandates nor prohibit contracting parties to
register marks other than visual marks. The
Paris Convention for the Protection of Industrial Property3
also does not define "trademark" for the purposes of that
convention. However, the Paris Convention did leave what is a
registrable trademark to the domestic law of contracting parties.
In
this regard, s.1(1)(a)
of the World Intellectual Property Organization (WIPO) Model Law for
Developing countries on marks,
Trade
Names and Acts of Unfair Competition
defines a mark as any sign used to individualize the goods of a given
enterprise and distinguish them from the goods of its competitors
including “words, letters and numerals and numerals, device,
combination of any of the aforementioned, coloured marks, three
dimensional signs, audible signs, olfactory signs, and other signs.
What
constitutes a mark in the Nigerian trademark legal regime can be
inferred and ascertained by the collective reading of the
interpretation of mark in section 67 of the Trademark Act4
and Section 9 of the Trademark Act (Requirements for registration).
s.67
of the Act5
provides that a mark includes a device, brand, heading, label,
ticket, name, signature, letter, numeral or any combination thereof.
Under
s.9(1) of the Act6
, in order for a trademark to be registrable, it must contain or
consist of at least the following upon prove of its distinctiveness:
- The name of a company, individual or firm in a special or particular manner,
- The signature of the applicant for the registration or some predecessor in business
- An invented word or words
- A word having no direct reference to the character or quality of the goods and not being according to its ordinary significance a geographical name or a surname.
- Any other distinctive mark.
From
a close observation of the above, it would be noticed that what
consists of registrable marks in the Nigerian regime are mainly
visual signs such as words and numeric or combination of both. The
above signs are often referred to as the conventional or traditional
trademarks because their provision is express in the Act and as a
matter of fact, they are the most rampant, most registered and if not
the most only used in practice.
This
however leaves loads of questions: are products or business brands
only distinguished by name, words or shapes?, what are other elements
that an serve as distinctive mark between one undertaking and another
as well as influence the decision of the consumer to choose one
alternative over the other?, in Hypothetical scenario, Mr. P had to
choose between two detergents A and B. Mr. P is already accustomed to
buying Detergent A and recognizes it by its giant symbol “A’’
in any of its coloured packets and as a matter of fact buys it on his
visits to the mall. Detergent B however caught the attention of Mr.
because of its strong fragrance which distinguishes it from that of
A, in addition to washing his clothes just as clean as Detergent A,
it leaves a fresh smell of lemon on his clothes and his surroundings.
Would it not led to unfair competition if Detergent A discovering
that they are losing customers to B decide to inculcate the smell of
Lemon in their own detergent
The
answers to the above are not far-fetched, in today’s market place,
companies and markets do not limit their branding to just visual,
numeric and alphabetical signs, but go further to create loyalty and
goodwill by taking leverage of other senses of the human body such as
smell or fragrance otherwise known as olfactory marks. As a
consequence, the smell of a product can be a major determinant of its
reception in the marketplace. Smells sell, and things that smell
better, sell better.7
Thus while the traditional and conventional marks may still be at the
top of the game, non-conventional marks like colour, scent (fragrance
or smell) are not uncommon.
RECOGNITION
OF NON-TRADITIONAL/NON-CONVENTIONAL TRADEMARKS: OLFACTORY MARKS
Non-traditional
marks are trademarks which do not belong to a pre-existing
conventional category of trademarks and therefore difficult to
register, however may nevertheless fulfill the essential trade
function of uniquely identifying the commercial origin of products or
services8
examples of such marks includes Holograms, tastes, other visuals
signs such as colors, sounds and fragrance or smell otherwise known
as olfactory marks which is the main focus of this writing. In
Nigeria, not belonging to the preexisting category of conventional
marks is an obvious connotation of their express non provision in the
Trademark Act.
It
seems however that the registration of
non-traditional/non-conventional marks can be made on the strength of
s.9(1)(E)
Of The Trademark Act9
which provides in addition to the traditional marks allows “any
other distinctive mark” to
be registered as a trade mark.
On
this ground, fragrance or smell may be registered as a trademark if
the manufactory or any other person seeking for its registration is
able to prove its distinctiveness i.e., that it is capable of
distinguishing its goods and business brand from other undertakings
without having recourse to its functionality or primordial nature.
As
simple as this may sound, the registration of fragrance as a
trademark is posed with so many challenges both with regards to prove
of its distinctiveness and also the medium which it can be
represented and deposited for registration fragrance being an
intangible and invisible medium. The difficulty in proving the
distinctiveness of an olfactory mark arises from human sensitivity.
in contrast to other conventional marks such as words, alphabets,
numerals, etc, fragrance is more challenging because they are
subjective and open to interpretation, the way A interprets a smell
could be entirely different from the way B interpret the same smell.
One strong argument against the registration of fragrance as a
trademark is that temperature, concentration humidity and human
condition can affect the state of a fragrance. Accordingly, a sample
of an olfactory mark deposited today may in reaction to environmental
gases change overtime.The
above has led to the relatively low success in the registration of
olfactory marks both in the international and municipal trademark
regime.
Notwithstanding,
to understand how olfactory marks an be registered and how it can be
made distinctive compliant to s.(9)(1)(e)10
and
also the medium it could be represented for registration, it is
apparent to examine the jurisprudence of other regimes such as the
European Union to ascertain the innovative way forward for the
Nigerian Trademark System.
THE
EUROPEAN UNION POSITION ON OLFACTORY TRADEMARKS
The
European Community Trademark Regulation (CTMR)
was enacted in 1993, the regulations established the European
community Trademark (CTM) system which permits a single registration
to be obtained in respect of a trademark application processed by a
single office as a single registration covering the whole of
territory of Europe11.This
means that once a mark has been registered in an EU Member State, it
is deemed registered in all the EU member States and need not to be
reregistered in each of them.
On
what constitutes a mark which can be used, registered and protected
as a Trademark, Article
4
of the CTMR12
States that "a
sign which a trademark may consist of is any sign capable of being
represented graphically, particularly words including personal names,
designs, letters, numerals, the shape of goods or their packaging,
provided that such signs are capable of distinguishing the goods and
services of one undertaking from those of other undertakings”.
The
above provisions establishes the substantive criteria ( capability to
distinguish ) and the Formal requirement (graphical representation)
for a mark to be registered as a trademark in the EU allowing for
signs not limited to words or graphic so long as they can be
"represented graphically and capable of distinguishing goods or
services of one undertaking from those of others.
There
are no separate requirements for accessing the registrability of
non-traditional marks; EU law does not require a stricter assessment.
The requirements are same vis-à-vis the the registration of
non-traditional marks such as olfactory marks. Thus, a fragrance can
be registered as a trademark in the EU if it can be proved that the
fragrance is distinctive i.e. capable of distinguishing goods or
services of one undertaking from those of others and capable of
graphical representation.
The
substantive criterion of distinctiveness is much less difficult to
ascertain. The requirement is that the fragrance which is sought to
be registered must be inherently distinctive or acquire a distinctive
character by use. Attempting to analyze the above will only led to a
round-robin and an unnecessary movement in a labyrinth. To avoid
this, two tests has evolved thus: the
test of generics and the test of functionality.
Consequently, to show distinctiveness, the smell/fragrance must not
be a generic smell neither should it be functional.
The
term Generic
is defined by Collins
English Dictionary13
as "relating to or characteristic of a whole group or class. By
extension, a generic identifier is associated with an entire product
class and, therefore, cannot serve to distinguish products within
that class. A generic fragrance therefore is a smell that is derived
from a generic dominant factor. Although scents can function as an
identifier showing the origin of a product, it would not be
considered distinctive if the scent is a generic designation of the
goods or services to which it has been affixed.14
For instance, phenol
and Pine Oil are
common ingredients for the production of antiseptic disinfectants,
thus the fragrance it emits is a generic fragrance common to products
of antiseptic disinfected class and therefore cannot be claimed by a
product line as a distinctive identifier of its product and
consequent thereupon will not registered as a trademark.
The
test of Functionality
of a smell in determining distinctiveness connotes that the olfactory
mark (fragrance, scent or smell) which is sought to be registered
must not be an essential attribute or the whole essence of the
product itself. The functionality doctrine under trademark law is
designed to prevent manufacturers from protecting features of
products with trademarks so as to not inhibit legitimate competition,
as the end of Trademark Law is to prevent unfair competition and not
legitimate competition. So, to the extent the scent is used in a
functional manner, it cannot be protected. For example, the actual
scent of a perfume fragrance would not qualify for trademark
protection because the feature of the product (its smell) is
the essential point of the product, a perfume scent will not be
considered distinctive because fragrance is a its functional
attribute, in other words, the fragrance is essential to the
product’s use or purpose.
Satisfying
the substantive criteria however only seems possible by affixing a
particularly unique scent to a normally unscented product which
doesn’t touch to its functionality or form part of its generic
features. A fragrance that meets the above requirement will be deemed
distinctive.
The
major hurdle in the registration of olfactory marks in the EU was the
formal requirement of graphical representation. Because fragrance is
an invisible and intangible medium, it becomes a paradox how same can
be represented graphically. The situation is not made light as the
CTMR did not give a precise definition of what the phrase "graphical
representation" means.
The
silence of the CTMR has been remedied by the European Court of
Justice (ECJ) which has in various decisions given interpretation to
the term. The case of Ralf
Sieckmann vs. Deutsches Patent- und Markenamt15
is
the locus classicus on the registration of non-conventional trademark
in general and olfactory marks in particular in the EU. In this case,
Mr Sieckmann offered to the German Patent and Trademark Office
(Deutches Patent-und Makenant) the following modes of representation
of his olfactory mark "
trademark protection is sought for the olfactory mark deposited with
the Deutches Patent-und Markenant (German Trademark Office) of pure
chemical substance methyl cinnamate (=cinnamic acid methyl ester)
whose structural formular is set out".
He further gave the structural formulae “C6H5-CH=CH000CH3”
as
part of the description. The applicant, apart from the chemical
formula, also presented the German Patent and Trademark Office with a
sample of the scent and pointed out that it is described as balsamic
and fruity with a slight hint of cinnamon.
The
German Patent and Trademark Office examining the matter asked the
European Court of Justice (ECJ) whether the phrase “a
designation which can be represented graphically”
included only those designations which could be presented directly in
a visible form, or should the phrase be interpreted to refer to
designations such as scent or sound, which cannot be perceived with
the sense of sight, but can be expressed indirectly using auxiliary
methods. The Office also asked the ECJ – in the event the latter
adopted the second, broader, interpretation, whether the requirement
of a graphic representation would be met if the scent was reproduced
in the form of a chemical formula, published description, deposit or
combination of these methods which Mr Sieckmann had done.
The
ECJ on Interpretation of Article
4 of the CTMR16
held that the list of signs capable of graphical representation in
Article 4 of the CTMR17
is endless and inexhaustive, therefore smells are not particularly
excluded. They although not visible may be represented by images,
lines and characters; however, such representation must be "clear,
precise, self-contained, easily accessible, intelligible, durable and
objective ". The ECJ went on to reject Mr Siekmanns application
on the reasons that
- The chemical formula of a scent does not allow its direct identification. It also pointed out that the chemical formula of a substance is not identical to its scent and, as such, is not sufficiently clear and precise. Only few people would recognize in a formula the subject matter of a trademark application.
- Description of an odour is not sufficiently clear, precise, and objective because it gives room to subjectivity which could be interpreted differently by people.
- The Deposition of the odour sample by Mr Siekmann is not durable and sufficiently stable, thus is not a graphic representation.
Similar
arguments were put forward by the Court in the judgment issued in the
case Eden
Sarl v OHIM18.
The European Court dismissed the application for the registration of
a scent mark represented by a written description "Smell
of ripe Strawberries"
and also a deposited image of strawberry. Regarding the written
description, the court noted that strawberry is of many varieties and
the smell could refer to any of these existing varieties therefore
the written description “smell
of strawberries”
is neither objective, clear or precise. The strawberry image was
regarded by the court to be even less accurate as the image cannot
represent the fruit which emits the smell itself.
The
medium of representation of olfactory marks remained a paradox; this
was a huge bane to the registration of non-traditional Trademarks
such as olfactory marks in the EU trademark regime due to the strict
conditions given on graphical representation. Such formulation of the
requirement for scent marks made it practically impossible to
register them as trademarks. Indeed, it is difficult to point to
other methods of graphically representing a mark than those
considered in the abovementioned judgments.
However,
following calls to widen the scope of trademark registration in the
EU as advances in technology and commerce continued, this position
has changed; the European
Union Directive 2015/2436
and subsequently Regulation
(EU) 2017/1001 of the European Parliament and of the Council
on
the European Union trademark19
amended the Community Trade Mark Regulations (CTMR) and discarded the
formal requirement of graphical representation. Under Article
3 of the EU Directive 2015/2436 which
is same with the Regulation
(EU)2017/1001,
A
trademark may consist of any sign in particular words, including
personal names, or designs, letters, numerals, colours, the shape of
goods, or sounds provided that such signs are capable of:
- Distinguishing the goods or services of one undertaking from others and
- Being represented on the register in a manner which enables the competent and public to determine in clear and precise manner, the subject matter of the protection according to its proprietor.
The
removal of the graphic representation for a more liberal requirement
has broaden the space for registration of nonconventional marks which
over the years have been hindered by the strict rule. The
modification also most importantly gave a big nod to the role of
technology in the protection of intellectual property. This is
illustrated, the preamble of the 2005 directive stating that “a
sign should be represented in any appropriate generally available
technology as long as the representation offers satisfactory
guarantee to that effect ".
There
is no need mincing words that this is a right step in the right
direction by the EU trademark office offering a freer trademark
registration not just on the non-traditional marks, but also on the
existing Traditional categories.
To
sum, the EU trademark regime on nonconventional marks is based on the
substantive criteria of capability to distinguish(distinctiveness),
the medium of representation for registration by the amendment of the
1993 CTMR by the 2005 and 2017 directive is by medium that makes the
subject matter clear and precise, including technological means!
EXPANDING
THE SCOPE OF THE NIGERIAN TRADEMARK REGIME TOWARDS NON-TRADITIONAL
MARKS (Olfactory Marks)
As
stated earlier, the Trademark Act did not expressly provide for the
protection of Non-traditional Trademarks such Olfactory Marks but in
the same vein, it did not expressly prohibit it. Thus, the Latin
maxim “quid
enim provisum, non prohitus” giving
expression to the presumption that “that
which is not prohibited is presumed lawful”.
Technically,
the definition of a mark in the interpretations section of the
Trademark Act seems to be inexhaustive because of the word
“includes”20.
Olfactory Trademark can be registered as “any
other distinctive mark” under
the provision of s.9(1)(e)
of the Trademark Act21,
if
it is proved that it poses the a distinctive character capable of
distinguishing the goods, services and product line of a particular
undertaking from another.
From
the foregoing, in order to register a fragrance, scent or smell in
Nigeria as a trademark, just as in the European Union, its
distinctiveness must be proved. To achieve this, the two tests used
in the European Union to determine the distinctiveness of a
fragrance, scent or smell mark viz: The
Generic Test and the Functionality Test would
be applied to ascertain the distinctive character or otherwise of the
Olfactory mark.
With
regards to the medium of representation of which a fragrance may be
presented for registration, The Trademark Act did not specify the
form of representation required for the registration of a mark, this
was covered nonetheless by the Trademarks
Regulations 1990
pursuant to the powers of the minister and the registrar to make
regulations for the administration of trademarks. Although the
trademarks regulations did not expressly provide that a
representation for a mark which is sort to be registered as a
trademark should be graphical, it seems the foregoing is the
requirement because the representation specified in the regulations
for all intents seem to be a linear representation (i.e
representation in a two-dimensional surface such as paper, lining,
tracing clothes, etc). in this regard,
s.25
(11) of the Trademark Regulations22
provides
“every
application for the registration of a trademark shall contain a
representation of the mark in the space provided on the application
form for that purpose”, when the representation exceeds such space
in the size the representation shall be mounted upon linen, tracing
cloth or such other material as the registrar may consider suitable.
It
would appear from the above that non-traditional marks such as
olfactory marks will not be registered unless it is represented on a
linear surface, corresponding to the formal requirement of graphical
representation in the old European Community Trademark Regime.
However, Olfactory marks being an intangible and invisible medium may
be represented on the strength of s.30(2)
of the Trademarks Regulations23
which allows for specimens of trademarks in exceptional cases.
With
the much-needed expansion of Trademark Scope in the Nigerian Regime
in place, Representation of Olfactory Marks (Fragrance, Scents or
Smells) for registration could therefore be made at the Trademark
registry through any of the following aids and ways:
- PERIODIC DEPOSITION OF SAMPLES.
The
ECJ in Mr. Sieckmanns case held that the deposition of odour sample
by Mr Seikmann is not durable nor sufficiently stable to suffice as
adequate representation because of the ephemeral and transient nature
of the smell/scent, this decision in the light of the graphical
representation era seem to be correct because fragrance or scent
samples are organic compositions and are subject to the natural
forces. Thus, temperature, Humidity, and environmental gasses can
change the scent of a sample overtime making it difficult to
ascertain the particular scent/smell which is sought to be protected.
This
challenge however can be circumvented in the new trademark regime by
periodic deposition of samples to the Trademark Registry. All organic
compositions are durable to a certain limit, the durable lifespan of
the sample can be calculated to the effect that a new sample of the
same fragrance/scent composition will be deposited to the Registry by
the manufacturer or any other person seeking for the registration of
the olfactory mark at an interval before the old sample becomes
materially at variance with the intended protection.
- THE PLACE OF TECH
Advancement
in technology has interplay with the protection of intellectual
property. With the removal of graphic representation requirement, and
the possibility of representation through alternative means both in
the EU Community Trademark System and the Nigerian regime, Fragrance
may be represented through the aid of the following technological
mediums for registration:
- Electronic Nose
This
process is an electronic means of deciphering smell marks. It
consists of an array of chemical sensors with overlapping selectivity
profiles. According to Stravroula, sensors measure the scent, collect
the quality and quantity data of its composition and identify it by
means of pattern-recognition methods. The end result of this process
is the generation of an ‘olfactory image’ of the scent in a
graphic form, thus meeting the requirement for graphical
representation.
- Scent Dome via PC
In
the society of the 21st century, the register of trademarks can be
consulted on the Internet. New technology has allowed the creation of
a peripheral device called a 'scent dome'. The ‘scent dome’ is a
peripheral device that creates smell simulations for PC users. This
device is in existence and has been created by companies like
DigiScents and Aromajet.com. The device, which is the size of a
computer speaker, is attachable to computers. The inner part of the
device contains a replaceable cartridge filled with aromatic oils
synthesized from ‘natural primary scents’, such as the scent of a
lavender or coffee. Each aroma is translated and encoded in a binary
mode and can be released either individually or in a combination so
as to create thousands of different smells and concentrations. It
senses scent or a combination of scents contained in the cartridge
and heats them, so as to vaporize and emit their aromatic potency
through the device and to the nose of the PC user.24
- Smell Machines
These
are machines capable of detecting taste, scent and smell. The
invention relates to biosensors for detecting odorants, especially a
biosensor that mimics odorant detection by a mammal, for example,
humans, dogs or cats. This field of the invention also relates to the
standardization of odours using the biosensor of the invention, and
the discovery of agonists, antagonists, and mixtures of odorants for
creating new odours, masking odours, enhancing odours, and designing
odours.
- Gas Chromatography-Mass Spectrometry (GC-MS)
GC-MS
is a technique for separating the components of a vapor by observing
the different speed by which each chemical component is expelled from
a long tube through which a sample of the vapor is swept.25
Once the components have been separated, a mass spectrometry
apparatus identifies the various separated molecules and their
relative volumes in the composition of the vapor.
- THE REGISTRAR’S DISRECTION
The
office of the Registrar for Trademarks is established by s.1(1)
of the Trademark Act.
In addition to express powers granted to the office under the Act,
the registrar is also granted discretionary powers in the
administration of trademarks
Pursuant
to s.46
of the Trademarks Act,
wherever any discretionary or other power is given to the registrar
by the Act or the Regulations, he shall not exercise such powers
adversely to an applicant for registration of a trademark without
giving the applicant or registered proprietor opportunity of being
heard.
Furthermore,
s.30(1)
of the Trademark Regulations
provides that where a drawing or other representation or specimen
cannot be given in a manner as required, a specimen or copy of the
trademark may be sent in such form as the Registrar thinks most
convenient.
Thus
the law backs the registrar to exercise this discretionary power
judiciously and not adversely. The discretionary power of the
registrar may be exercised towards accepting representation of
Olfactory Marks (fragrances, scent or smell) so long that he is
satisfied as to the appropriateness of such representation.
CONCLUSION
The
world is changing, so must we. A major attribute of law is its
flexibility and organic nature; its ability to adapt to changing
times and changing circumstances. Our world today is shaped with
tremendous advances in science and technology and the law to remain
relevant and of a utilitarian value, must keep pace with these
changes.
The
designation and Recognition of Non-Traditional Trademarks such as
Sounds, Holograms, Colours, Tastes and Olfactory Marks as distinctive
Marks which are capable of Trademark registration and protection is a
much-needed innovation in the International Trademark regime in
general and the Nigerian Trademark Regime in Particular. Our legal
frameworks must be made clear
It
will be leverage and incentive to many players in the manufacturing
industries including SMEs ensuring there is reward in creativity and
protection against unfair and unjust competitions. The place of
olfactory trademark in signaling the origin and source of a goods,
product line or business brand and distinguishing these undertakings
from each other is not in question in the present day market; “A
scent has a power of persuasion greater than words, appearances,
feelings or willpower”26,
only the protection of the law will lead it to its common place among
other traditional and conventional marks.
AUTHOR
Chidera
Emmanuel Chikere
is a Savvy, Curious Motivated young professional with antecedents and
penchant for meeting set targets and marginal accomplishments.
A
Bar Aspirant
at the Nigerian Law School,
Yola:
he graduated top 5% from Ebonyi State University where he headed the
University Legal Aid Clinic for the 2018/2019 Clinical year
witnessing unprecedented positive changes which includes but not
limited to: Massive release of Prisons and Pre-trial detainees,
Street Law Campaign and Advocacy for Social Justice.
He
possess an unbridled passion for Finance and Projects with particular
attention in advising special purpose vehicles in equity contribution
and raising equity for projects, Intellectual Property,
International Law and Diplomacy, Corporate and Business Law.
Chidera
is engaged in virtual Internship programme with leading global firms
like White and Case, Baker MacKenzie where he works on tasks in
Finance and Projects, Dispute Resolution, White Collar defences and
Intellectual Property Practice.
His
driving force and core personal values are anchored on honesty,
humility, team spirit, self-sacrifice and hard work.
He
is open for Internships, Volunteer and roles in a Law Firm and/or
International Organizations.
1
Cap T13 Laws of The Federal Republic of Nigeria, 2004
3
Paris Convention for the Protection of Industrial Property 1883
4
Trademarks Act, Cap T13 Laws of The Federal Republic of Nigeria,
2004
5
ibid
6
ibid
7
Hawes, James E; Fragrances as trademarks, 79 TMR 134, 1989, at
134-135.
8
http//en.wikipedia/wiki/non-coventional-trademarks
9
Cap T13 Laws of The Federal Republic of Nigeria, 2004
10
Trademarks Act, Cap T13 Laws of The Federal Republic of Nigeria,
2004
11
Article 19 of the European Union Community Trademark Regulations
(CTMR), 1993
12
European Community Trademark Regulations, 1993
14
Kinter, Earl W and Lahr, Jack; An Intellectual Property Law Primer,
Clark Boardman Corp.Ltd, New York, 1982, at 257.
15
case (C-273/00)
16
European Community Trademark Regulations, 1993
17
ibid
18
ECJ Judgement of 27- OCT- 2015, T-305/04/00
19
14 June 2017
20
s.67
of the Trademark Act on interpretation of “mark” provides “a
mark includes a device, brand, heading, label,
ticket,
name, signature, letter, numeral or any combination thereof.”
21
Supra @6
22
Trademark Regulations 1990
23
S.30(2) of the Trademark Regulations “where a drawing or other
representation or specimen cannot be given in a manner aforesaid
(i.e section 25 TMR), the registrar may also in exceptional cases
deposit in the office a specimen or copy of any trademark which
cannot conveniently be shown by a representation and may refer
thereto in the register in such manner as he may think fit.
24This
device was originally developed by the American company called
DigiScents. As they ran out of means during 2003, it seemed to be
the end of the 'scent dome'. However, Triscent took over and is
further developing the technique. Currently, a UK net provider, the
Telewest Broadband is testing this device though internet
25
John Daintith, A
Dictionary of Chemistry (6th ed. 2008).
26
Süskind, Patrick; Perfume: The Story of a Murderer, Diogenes
Verlag, 1. Aufl., Zürich, 1985, at 107
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