Section 1(1) of the Trade Marks Act 1994 (the Act) states that:

 1. - (1) In this Act a “trade mark” means any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings.

 The process of examination cannot begin until the Registrar has been provided with "a representation" of the sign in question (Section 32(2)(d) of the Act).  After the process has begun, under s92 of the Act amendments to the application must only be inconsequential and may not:

 substantially affect the identity of the mark

Therefore a representation of the mark must, from the outset, graphically represent the mark to an extent whereby the absolute and relative grounds can be applied under respectively, s3 and s5 of the Act; and infringement under s10.  Furthermore as the Register kept under s63 of the act is open to public inspection it must satisfy public inspection.  This means a fixed clear and unambiguous graphic representation that records the relevant mark.  To be represented graphically, marks should be presented in a way that is 'clear, precise, self-contained, easily accessible, durable and objective' (see Sieckmann, ECJ case C-273/00 a case on a balsamic-fruity, with a slight hint of cinnamon smell).

Section 1 of the Act continues:

A trade mark may, in particular, consist of words (including personal names), designs, letters,

numerals or the shape of goods or their packaging.

Sounds or aromas can taken to have been represented graphically with the required degree of precision when figuratively represented, even though interpretation or analysis may then be required in order to detect or demonstrate use of it, but the overriding feature is that the rights and liabilities of the Act cannot be fully implemented in relation to a graphic representation which fails to disclose the identity of the sign it purports to represent or to do so clearly and unambiguously.

Trademarkroom