Belgium: Graphical representation requirement abandoned

January 26 2016

On March 23 2016 the new Trade Mark Regulation 2015/2424 will enter into force. This Regulation is the result of the European Commission's pledge to make the new trade mark registration system more accessible, efficient, flexible, reliable and predictable.

Where previously a Community trade mark could only consist of signs capable of being represented graphically, the requirement of graphical representation has been abandoned in the Regulation. The elimination of this requirement opens the door for the registration of non-traditional trade marks such as smells, sounds, holograms and motion marks, which, previously, were difficult or impossible to represent graphically.

Representation by other than graphical means may in some cases allow a more precise identification of the mark, increasing legal certainty. A representation of a sound mark by means of a digital sound file, for instance, will contain more information than the representation of notes on a scale, since it allows to also identify the interpretation of the music, including the instruments used, speed, volume, etc.

This new legislation is aligned with the Sieckmann (C-273/00) criteria set forth by the CJEU. According to this ruling, a trade mark should be represented in a manner that is clear and precise, self-contained, easily accessible, intelligible, durable and objective. Article 4(b) of the Regulation confirms that a European Union trade mark should be capable of being represented in the Register in such a way that the competent authorities and the public are able to determine the clear and precise subject matter of the protection afforded to its proprietor.

The removal of the graphical representation requirement in the new Regulation is certainly a positive evolution towards the registration of non-traditional trade marks, which are becoming more important in the digital age. This clears the way for developing new more comprehensive (corporate) branding strategies covering many more ways of representing brands and what they stand for. However, the requirement of a "clear and precise subject matter" should avoid a boundless extension of the admissible ways to represent a sign.

The future will show the effect of this new legislation on non-traditional trade marks. It will be interesting to follow how the European Union Intellectual Property Office and the CJEU will handle applications for non-traditional trade marks in the light of the Regulation.