The second requirement for trademark capacity for registered trade marks^[1] is clear and precise representation.^[2] Until the 2015 trade mark law reform, the law required 'graphic representation'. The amendment is intended to make room for new technical possibilities and also enable other types of representation. At the same time, the amendment takes account of the fact that trade mark law is ultimately less about definiteness and more about definability.^[3]
The problem is that most trade mark offices outside the EU still use the criterion of graphic representation. Therefore, if international trade mark protection is to be obtained, signs that enable a graphic representation must still be registered. This must be taken into account from the outset, particularly in the case of international registrations.
A clearly and precisely definable representation within the meaning of Art. 3 TMD does not have to depict the sign itself;^[4] rather, it must make it possible to visually represent the sign, in particular by means of figures, lines or characters. With regard to the characteristic of 'graphic representation', the CJEU had established the criteria that it must be clear, precise, self-contained, easily accessible, intelligible, durable and objective (see also Art. 3 I EUTMIR, §§ 6 ff. Trade Mark Regulation).^[5] These criteria will continue to apply, although the characteristic of graphic representation has now been abandoned. This is because the amendment to the law served solely to adapt to technical progress.
For example, the depiction of a shop

is a clearly and precisely definable representation without the need for further size or proportion specifications.^[6]
The representation first defines the trade mark itself^[7] and determines the exact subject matter of protection. The mere registration of a trade mark should enable authorities and economic operators to determine its precise form and thus the risk of infringement of the trade mark.^[8]
For example, an odour cannot be represented in a clear and precise manner by a chemical formula, a description in words, the filing of a sample of the odour or the combination of these elements. Only a few would recognise the odour in question in the formula, it is not comprehensible enough and does not reflect the odour of a substance, but the substance itself, so that it also lacks the necessary clarity and precision. The filing of an odour sample is not a clearly and unambiguously identifiable representation and lacks the necessary stability or precision. However, if these individual elements do not meet the requirements of a clearly and unambiguously identifiable representation, their combination cannot fulfil these requirements either, in particular those of clarity and precision.^[9] In the case of a sound sign, a general description - such as 'the sound of a lion roaring' - lacks precision and clarity. The same applies, respectively, to an onomatopoeic representation by a word such as 'kikeriki'; in this respect, however, a sound example as a file is helpful.^[10] Finally, a tactile mark cannot be represented in a clear and unambiguous manner merely by submitting a photographic image of a product.^[11]
However, case law is sometimes too strict in this respect. It is not a question of definiteness, but of identifiability. Because hardly any trade mark is really definite. Even a word mark - especially in the international field - does not offer a precisely defined sign due to the various pronunciation possibilities, but only a definable scope of protection. The criterion of definability is only about being able to grasp the core of the protection.
Accordingly, the shape trade mark

was definite enough. Even in the case of three-dimensional trade marks, the design features of the shape can sometimes be inferred from a single image from just one perspective. The imprecise representation in this respect can only lead to a restriction of the scope of protection.^[12]
In addition, the clear and precise representation excludes any subjective element.^[13]
For example, the description of an odour - such as the 'smell of a strawberry' - is not objective enough because the perception of smell can be different for different people. Such a description therefore does not meet the requirements of a clearly and precisely identifiable representation.^[14]
Direct intelligibility of the clearly and precisely identifiable representation is not required as long as the representation enables the competent authorities and the public to recognise the sign for which registration as a trade mark is sought. ^[15]
For example, a musical sequence of notes can be represented in a clear and precise manner by submitting a stave divided into bars with a clef (G, F or C), note and rest signs whose shape indicates their relative value and, where applicable, accidentals, all of which together determine the pitch and duration of the notes. This representation fulfils the requirements of case law.^[16] A sonogram, on the other hand, is likely to lack sufficient intelligibility;^[17] however, this can be compensated for if the sonogram is accompanied by an audio file, in particular an mp3 file, which can be uploaded to the EUIPO's electronic register.^[18]
In addition to the clear and precise representation, a description (Art. 3 III lit. d, e, f, h, IV EUTMIR; Sec. 6b Trade Mark Regulation) may be attached to the application in order to explain a sign that is not sufficiently precise. However, a description is only to be taken into account to the extent that it is not in opposition to the representation of the sign.^[19] Also, a description can only be filed together with the trade mark application, but cannot be filed subsequently.^[20] A description may also be necessary to clarify what type of trade mark the application is. The Office is bound by the applicant's choice.^[21] As a rule, a cross in the respective place on the application form is sufficient.
However, if the applicant does not indicate, for example, that the sound sequence applied for is a sound sign, the office responsible for the registration and the public, in particular the economic operators, may assume that it is a word or figurative mark corresponding to the representation in the application.^[22]
In the case of abstract colour marks, a mere colour sample does not meet the requirements of a clearly and unambiguously identifiable representation of a trade mark. Since it can change over time, in particular due to the transience of carrier materials such as paper, it does not have the required permanence. In this respect, in the case of a colour sample associated with its verbal description, the question of whether there is a sufficient representation depends in the specific case on whether all the requirements for a clearly and unambiguously identifiable representation are met. In contrast, the designation of a colour according to an internationally recognised identification code is sufficient for a clear and unambiguous representation. This is because such a code is sufficiently precise and durable.^[23]
If, for example, a colour mark is applied for solely by filing a colour sample, this deficiency can be cured at a later date by adding the designation of the colour according to an internationally recognised identification code.^[24] Since the problem of the colour sample lies solely in the possibility of its alteration, a cure should also be possible after the filing date as long as it is ensured that the colour sample has not yet changed.^[25]
In the case of trade marks consisting of a combination of more than one colour, the requirement of a clear and precise representation is only satisfied if they are systematically arranged in such a way that the colours concerned are connected in a predetermined and consistent manner. The mere combination of two or more colours without any form or contour or the mention of two or more colours 'in any conceivable form' does not have the characteristics of precision and consistency required under Art. 3 TMD.^[26]
However, the criterion of systematic representation is in any case fulfilled if, for example, it is requested that several colours be entered next to each other in a 1:1 ratio in a lateral arrangement, and in the case of more than two colours also with an indication of the order. Furthermore, a concrete areal or territorial limitation of the colours or a designation of a context of use is not required.^[27] The same applies if, in the case of two colours, it is indicated that one is on the upper side of the product - chainsaws - and the other on the lower side.^[28] On the other hand, the indication 'The ratio of the colours is approx. 50% to 50%' is not sufficient if the arrangement of the colours is not recognisable.^[29]