Scent As A Signature: Examining the Role Of Smell In Trademark Recognition
INTRODUCTION
Trademarks are vital part of modern day commerce because they act as distinctive and unique symbols that enable consumers to recognise and distinguish goods and services offered by different providers. Trademarks are traditionally considered to be connected with visual elements that include logos, brand names, as well as packaging however, the field of trademarks has widened and it includes non-traditional marks, such as smells, sounds, colors etc.
In the realms of branding as well as intellectual property, “smell as a form of trademark” has acquired immense popularity. It is extremely relevant in today’s competitive landscape as businesses look for novel approaches to forge distinctive brand identities in order to engage customers on a sensory level. Iconic scents like Chanel No. 5 in the cosmetics industry, recognisable tastes from fast-food restaurants like McDonald’s, as well as unique and distinctive smells from cleaning products and retailers like Abercrombie & Fitch demonstrate the scent trademarks ability to influence the choices of consumers, distinguish products, strengthen brand identity and increase competitiveness in market.
RULES/LEGISLATIONS
The idea of “Smell as a Trademark” where distinctive fragrances are used as trademarks to distinguish goods or services has emerged in recent years. Businesses have started to take notice of this unconventional branding strategy as they realise how powerful smell can be in developing distinctive as well as memorable brand experiences. In the contemporary environment of branding and intellectual property, the legal structure governing smell trademarks varies among jurisdictions, bringing opportunities as well as challenges.
“A trademark is a mark which is capable of being represented graphically and capable of distinguishing the goods or services of one person from those of others; it may include the shape of goods, packaging, or combination of colours,” according to Section 2(zb) of the Indian Trademarks Act, 1999, which complies with Article 15 of the TRIPS Agreement provisions. This section does not specifically state that non-conventional marks like smell, flavour, sounds, etc. are excluded.
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The primary legislative basis for smell trademark regulation in the US is the Lanham Act. Although scents are implicitly included in the Act’s protection of trademarks, the U.S. Patent and Trademark Office (USPTO) has stringent procedures for scent trademark registration. The applicant must prove the smell’s function as source identification, exhibit distinctiveness, as well as offer a clear and accurate graphical representation of the scent as established in the Myles Limited case [R 711/1999-3].
In Ralf Sieckmann v. Deutsches Patent and Markenamt case, the European Court of Justice devised the “Sieckmann seven-fold Test,” which set certain guidelines for graphical representations of smells within the EU. These standards include clarity, accuracy, self-containment, intelligibility, accessibility, durability, as well as objectivity. The objective of these requirements is to guarantee the legitimacy of graphical representations of smell trademarks.
CHALLENGES
Olfactory markings have certain particular challenges under Indian trademark law. The difficulty of graphical representation is a big barrier. Smells don’t have a widely acknowledged classification system, unlike colours or sounds, which may be described using universally agreed-upon notations or codes.
Words as well as chemical formulas fall short in portraying the subtleties and distinctiveness of a smell. This conundrum is acknowledged in the Official Manual, 2017 of Trade Marks in India, which claims that since odours do not fulfil the definition of a graphical representation, they are not to be recognised. By requiring on paper registration of marks during registration, which is problematic for olfactory marks, Rule 26 further exacerbates the problem.
Identifying a scent’s uniqueness in India is another difficulty. It might be difficult to establish the originality of a perfume because many of them are inextricably linked to the goods they come from. Given that many products purposefully have attractive scents, it can be challenging to prove that a perfume isn’t a natural property of the related products.
The functionality doctrine, which limits the protection of features of a product that serve a practical purpose, further complicates the issue. It becomes difficult to prove that a certain smell is not a functioning element.
Furthermore, the legality of scent as a trademark is subject of uncertainty due to the subjectivity of human olfaction as well. To solve this, precise descriptions are required to guarantee that the recorded odour is not of natural origin and to avoid misunderstanding with other odours.
CONCLUSION
Unconventional marks, such as smell marks, coexist in the world of intellectual property, but sometimes additional word or figurative marks are required for effective brand protection. The ambiguity surrounding the status of smell marks globally highlights the need for further clarity about the requirements for both their distinctiveness as well as their graphical representation.
For worldwide innovation and technology transfer, it is essential to harmonise the regulations governing how smell marks must be represented in different legal systems. Systematic registration rules for smell marks with more flexible interpretations along with laxer requirements are essential in today’s globalised and technology-driven world.
The road to legalise smell marks as trademarks is not without obstacles, particularly in India where the difficulties with graphical representation prevent their registration under the country’s current trademark law. It’s imperative to fill these gaps and unify global approaches in order to solve the same.
Recognizing smell as a trademark represents an intriguing frontier in intellectual property law, reflecting evolving commerce and branding in a sensory-driven world. Despite legal complexities, the potential benefits for consumer engagement and brand distinctiveness are substantial. Adapting legal systems to offer clarity, consistency, and protection to this emerging form of branding can stimulate innovation, enhance consumer experiences, and benefit businesses and consumers alike.
SUGGESTIONS/WAY FORWARD
INTERNATIONAL STANDARDS HARMONISATION:
Suggestion: Promote the harmonization of international trademark law, particularly with regard to smell trademarks.
Example: Encourage organisations like WIPO, to provide uniform rules for smell trademark registration in order to simplify the procedure for businesses worldwide.
FLEXIBLE LEGISLATION:
Suggestion: Encourage the adoption of flexible trademark regulations that permit non-traditional trademarks.
Example: Propose amendments recognizing smell as a registrable trademark, emphasizing distinctiveness and consumer recognition.
METHODS OF CLEARER GRAPHICAL REPRESENTATION
Suggestion: Promote creative approaches to odour representation in graphics.
Example: Working with specialists to create tools like interactive smell profiles or 3D scent mapping for realistic depiction.
COLLABORATION WITH THE EXPERTS OF INDUSTRY:
Suggestion: Encourage communication between those in the legal and fragrance industries.
Example: Collaborating with law firms and perfume producers to understand the potential legal ramifications of smell branding.
REFERENCES
Pan, Y., 2023. Research on the distinctiveness examination criteria of scent trademarks. Science of Law Journal, 2(11), pp.48-51.
Sahni, P., 2023. Psychological impact of olfactory branding: The future of smell marks in India. The Journal of World Intellectual Property, 26(1), pp.90-96.
Geiregat, S., 2022. Trade Mark Protection for Smells, Tastes and Feels–Critical Analysis of Three Non-Visual Signs in the EU. IIC-International Review of Intellectual Property and Competition Law, 53(2), pp.219-245.
Wahi, P., 2022. Comparative Analysis of Sound and Smell Trademark. Jus Corpus LJ, 3, p.1089.
Shuju, F.U., 2021, June. New Challenge on Intellectual Property: Smell Trademark. In 2021 International Conference on Enterprise Management and Economic Development (ICEMED 2021) (pp. 465-468). Atlantis Press.
Odintsov, S., Trubina, M. and Mansour, M., 2020. Comparative legal analysis of protectability of olfactory trademarks. Amazonia Investiga, 9(27), pp.129-139.
Klingberg, R., 2019. The Future of Scent as Trademarks in the European Union-A comparative study of the challenges and possibilities for protection of olfactory signs in the European Union and the United States.
Author: Kunal Vinayak, A Student at Symbiosis Law School Pune, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or IP & Legal Filing
