Abolition of Graphical Representation in EU Trademark Directive: Should Countries with Similar Provisions Follow EU’s Footsteps?

Since the graphical representation requirement for trademark registration was abolished in the European Union, the need to critically appraise its effect on the registration of Non-Traditional Marks has become necessary. The question as to whether or not countries with similar provisions for graphical representation in their trademark laws should follow in the footsteps of the European Union has also become relevant. This paper critically evaluates the effect of the removal of the graphical representation requirement on the registration of olfactory, tactile and gustatory marks by offering arguments, examples and legal authorities to support its view. The paper found that even though the EU has recently relaxed the graphical representation requirement, this step makes very little practical difference to the registrability of olfactory, tactile and gustatory marks. The reason for the said category of mark’s failure to satisfy the graphical representation requirement prior to its abolition still persists under the revised EU registration system. In this regard, the paper concludes that the changes brought about by the EU Trademark Reform Package are more cosmetic than substantive with regard to the registration of olfactory tactile and gustatory marks.