Colours, Smells, Soles of Shoes: The Slippery Slope of Trademarking

What do Rubix Cubes, Kit-Kat bars, Pantone 1837, Louboutin shoes, the smell of Play-Doh, and the decor of the Apple Store have in common? All have been the subject of heated legal debate to determine whether these non-traditional brand markers should be granted the status of regular trademarks. This week, Sciences Po welcomed academics and lawyers involved in the debate for a conference on ‘The Protection of Non-Conventional Trademarks’. The event marked the forthcoming publication of a collection of essays on the subject by intellectual property experts, Professors Irene Calboli and Martin Senftleben.

Attendees first heard from Calboli, who discussed the detrimental implications of trigger-happy trademark registration on the market. Where does the line fall between defending a firm’s right to protect its brand identity and allowing it to exercise a monopoly? Calboli stressed the “chilling effect” that excessive trademarks can have on creativity and competition in the market, resulting in reduced incentives for productivity and investment, all while increasing the cost of products themselves. Her conclusion from a public policy standpoint: we should not protect more than is strictly necessary.

“What is a mark? It’s a very very large definition with a very low threshold to prove distinctiveness. We need to avoid descending into a slippery slope where anything that is deemed original or eye-catching can meet the grade for distinctiveness and thus be registered as a mark.”

Senftleben approached the issue from a cultural perspective, addressing the overlaps between copyright and trademark law. While the expiry date of copyright allows intellectual property to pass into and enhance the public domain, registered trademarks risk freezing the “raw materials for cultural creativity” in perpetuity. The moment a character, colour, smell, shape, pattern is fixed as a trademark it can no longer be a source of creative inspiration. Focussing on the example of attempts by the city of Oslo to register two of their most famous cultural monuments as trademarks, Senftleben warned against the particular potential of non-traditional marks to infringe on artistic freedom.

Calboli and Senftleben’s interventions were followed by a panel discussion with two trademark lawyers, as well as members of the audience. The event was organised and moderated by Sciences Po’s own intellectual property expert, Professor Séverine Dusollier.

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