The Argument Below Is To Advise Phat Flavaz Ltd.

The argument below is to advise Phat Flavaz Ltd. as to whether they are able to register the odour of cannabis which is impregnated in their new t-shirt, whether they are able to register a new trademark called “STREET GEAR” for clothing and whether they are likely to succeed in an action for infringement against Bad Boyz Ltd.

First of all, we have to discuss what is a trade mark? A trade mark is a word, phrase, symbol or design, or combination of words, phrases, symbols or designs that is legally registered or established to be used in the course of trade. It represents the company’s product in which it identifies and distinguishes the source of the goods or services of one enterprise from those of others. A trade mark owner can legally defend his mark against infringements if he has legally registered his trade mark, or his trade mark has acquired local distinctiveness through the use over a period of time. Section 1(1) of Trade Mark Acts 1994 (TMA) defines trade mark as “any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of undertakings”.

The first issue is regarding whether Phat Flavaz can register the trade mark of the odour of cannabis that

Based on the tenth recital of the preamble to the EU Directive 89/104/EEC, it states that “… to guarantee the trademark as an indication of origin”, the mark must serve as a guarantee of trade of origin or a badge of origin. Upon failure to meet this requirement, the sign is unregistrable, and is not withstanding the absolute grounds for refusal of registration. This situation can be seen in Canon Kabushiki Kaisha v MGM. The question states that Phat Flavaz wants to register an odour and this is known as olfactory