EU turns up its nose at attempt to trademark smell of strawberries

The rush of trademark claims followed a successful bid by a Dutch perfume company that registered the aroma of freshly cut grass in 2000. It used the patent to make tennis balls smell as good as the courts upon which they bounce.

But Eden Sarl's claim to trademark the smell of strawberries for use in soaps and lotions was quashed yesterday by EU experts, who ruled that, as the fruit "does not have just one smell", its scent cannot be used as one company's unique selling point. "There is no generally accepted international classification of smells which would make it possible ... to identify an olfactory sign," the EU's second-highest court decided.

Sensory tests showed the plump red fruits can have up to five distinct scents. "This means ... that the different varieties of strawberries produce significantly different smells," said judges, much to the consternation of Eden Sarl, which had hoped to add strawberry-scented pens and stationery to its armoury of nasally enticing products.

The firm had argued that, while different varieties of fruit may taste differently, their smell, associated by so many in Europe with lazy summer picnics and the odd glass of champagne, remained the same. "The smell of ripe strawberries is stable and durable," Eden representatives said. "That smell is well-known to consumers who will have memories of it from childhood."

The company had asked the court to overrule the EU's trademark agency, which rejected a request made by another French firm to register the scent in May 2004.

The EU also rejected an attempt to register the image of a strawberry as a trademark. But it did acknowledge that, in certain circumstances, the use of a smell as a "non-conventional" trademark would be permitted.

"The olfactory memory is probably the most reliable memory that humans possess," the judge said. "Consequently, economic operators have a clear interest in using olfactory signs to identify their goods."

European laws on trademarking are notoriously more stringent than those in the rest of the world. Attempts to use raspberry as a trademark scent for perfumed candles, as well as the smells of lemon and vanilla, have also failed.

In 2000, the British company John Lewis tried to use the smell of cinnamon as a desirable addition to furniture polish but failed after the EU ruled that the smell of the spice was not "distinguishable" enough for trademark purposes.

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