Non-traditional marks are notorioulsy difficult to register as trade marks. Smell marks are one of these non-traditional marks. The 'Smell of fresh cut grass' was applied for in relation to tennis balls as a CTM.

The Second Board of Appeal set out that the graphical representation requirement was imperative conducting the examination and registration procedures.

The question theerefore was whether or not the description of the smell of fresh cut grass gave clear enough information to those reading it to have immediate unambiguous idea of what the mark was when used in connection with tennis balls. They took the view that the 'smell of fresh cut grass' did satisfy those requirements and overturned the original refusal by the examiner, stating that: "the smell of freshly cut grass is a distinct smell that everyone immediately recognises from experience". It seemed therefore that smell marks were registrable per se.

However since this ruling there was the seminal case of Sieckmann. Where an application was made for a smell, it it featured the chemical equation for the smell and the following description: "balsamically fruity with a slight hint of cinnamon". The application was refused on the basis that the mark did not fulfill the requirements of the German equivalent of section 1(1) of the TMA 1994. In particular the case set out the need for the following to satisfy the requirement of graphical representation:

• clear;
• precise;
• self-contained;
• easily accessible;
• intelligible;
• durable; and
• objective.