Okonventionella varumärken : - form, färg, doft, ljud

Sammanfattning: This dissertation deals with new types of marks – shape marks, colour marks, feel marks, hologram marks, motion marks, sound marks, scent marks and taste marks – which, as an option or complement to conventional word or figure marks, are being increasingly used as trade marks in the market place. This trend gives rise to legal and practical questions related to the application of already established trade mark principles in the new context. These questions are the topic of the present investigation. Two issues are studied more closely: the concept of distinctiveness and that of graphic representation.To function as a trade mark a sign must be capable of distinguishing goods or services of one undertaking from those of others. For this, a link must be established between the mark and the goods or services. A problem is that an unconventional sign often conveys functional or decorative messages in addition to the trade mark message. The problem of conflicting messages given by a mark is discussed in some detail, as well as the situation where multiple marks are used in relation to one and the same product. A special problem is that the mark sometimes may not be perceptible to the consumer until after the point of sale. An analysis is also presented of the conflict between the right of the trade mark owner to use, e.g., a colour mark, and the public interest in leaving free certain signs for everyone to use.In order to define the subject of protection, a trade mark application must include a graphic representation of the mark for which registration is sought. As a consequence of the interpretation by the European Court of Justice, the requirement of graphic representation today effectively blocks certain types of marks from being registered. It is suggested that the technical development now may motivate a generalization of the requirement, to include also other methods of representation.