Relying on the European Court’s judgment in C-273/00 Sieckmann v OHIM ECR 1-11737 where it held that
“a trade mark may consist of a sign which is not in itself capable of being perceived visually, provided that it can be represented graphically, particularly by means of images, lines or characters, and that the representation is clear, precise, self-contained, easily accessible, intelligible, durable and objective”
Eden argued that it had met that requirement by filing a verbal description of the smell together with a colour picture of a strawberry.
The CFI was unimpressed. Neither the picture nor the description was sufficiently precise if only because fragrances vary from one variety of strawberry to another. Indeed, the Court took the view that the photo added nothing to the description.
Since there is no generally accepted international classification of smells which would make it possible, as with international colour codes or musical notation, to identify an olfactory sign objectively and precisely through the attribution of a name or a precise code specific to each smell it is hard to see how any smell can ever be registered.