Non-Conventional trademarks under EC and Maltese law

Abstract

The dissertation seeks to analyse 'non-conventional trademarks' under EC as well as Maltese law. These are any marks which do not come under traditional categories of trademarks such as letters, words, logos, numerals, pictures and symbols. The main non-conventional trademarks analysed in detail in the dissertation are those marks which may in themselves be visually perceived (colours and shapes), as well as those which cannot in themselves be visually perceived (sounds, smells and tastes). The latter category gives rise to certain problematic issues which are examined in detail and fully explained. Other (rarer) non-conventional marks like tactile marks, holograms, movements and gestures, video and animation as well as concepts are also studied and illustrated. Each mark mentioned above is analysed in the light of the definition of a trademark under EC and Maltese law. In each case therefore, a study is undertaken to examine whether or not the non-conventional mark in question qualifies as a sign which is capable of distinguishing the goods and services of one undertaking from those of other undertakings and whether or not the mark in question is capable of graphic representation. Other legal requirements including the absolute grounds of refusal on the basis of lack of any distinctive character as well as descriptiveness are also discussed where appropriate. All the above is analysed with reference to many relevant judgments delivered by the European Court as well as decisions laid down by The Office for Harmonization in the Internal Market (OHIM). The Maltese position is also evaluated throughout this work - from both a legal as well as practical perspective. The author finally examines whether or not any legal intervention is necessary.