Significance of Smell in Trademarks

Introduction

A ‘smell trademark’ being intangible in nature of it’s representation for registering as a trademark, has been a considerable opposition for the owners who deals with products like soaps, perfumes, creams, cosmetics, body lotions, and so on. Unlike smell, there are few non-conventional trademarks for sound, taste, motion, etc. Taking ‘odour’ as the basic constituent, plain elucidation of the chemical substance used would not be sufficient or lets say is not an acceptable standard for registering as a trademark. As per the Trademarks Act 1999, the definition of trademark explicitly conveys that only the graphical representation of the marks and the element of in comparability i.e dissimilarity between the existing marks either in terms of shape, size, color, picture serves the essentials of a trademark.

As, the scent of a product alone makes it barred from registration process it relies upon the owner to prove it distinct apart from other features. Every developer dealing with scent as a prime content worked their fingers to the bone for upheaval of a new product. Apart from the product availability and description any such products related to fragrance mainly sticks on to the scent factor. However, from ages as trademarks has been customarily given to the conventional ones, as the former has no worth. To legally protect the ‘smell’/’odour’ of a product lies the cardinal right of the owner and also plays a vital chunk of innovation.In the famous case of Ralf Seikmannv. Deutsches Patent and Markemant, the registration for trademark has been made for ‘methyl cinnamate’, but unfortunately they failed to meet the criteria as per the law which required graphical representation.

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If we dig into the main motive of the evolution of trademarks, we will get to know the core reason behind holding up the emerging startups and enterprises who yearn for drawing a foremost position in the market where these trademarks aids in achieving the same. Providing opportunities to these young and new preneurs is one of the key motive of the trademarks. However, there are still various aspects which ought to come in to the light and serves equal significance as others. Knowing the complexity of usage of ‘smell’ in trademarks it is high time to carry out such laws that grant them the permission to those attributes that can be felt but not be visible in nature.

Misutilisation Of ‘Smell’ In Trademarks

Till date it is clearly apparent that no laws regarding the protection of ‘smell’ in trademarks have come into survival in India.The doctrine of functionality in trademark law states that a product’s functional characteristic does not count for trademark. Smell in itself is such feature that is functional in nature tends to fail being a part of trademark registration. Taking reference of PEARS soap which is most preferred soap among consumers in terms of its purity and non-allergic ingredients which gives a soothing smell and comfort to the users. Its manufacturing is totally different from other soaps as the main component of this soap is glycerol processed after saponification. Pears contained total fatty matter (TFM) of 45% which was 70-80% for other soaps.Being distinctive in terms of quality not only in ingredients but also the manufacturing process undergone in each stage has to be taken into consideration which is the crucial part. By not withstanding any of these qualities,they had also introduced three different colors that are mint (blue), green and classic amber, where each had non-identical aromas.

The above reference constitutes just a part of product dealt with smell as a functional feature. A soap besides its fragrance has to go through tests based on skin allergies and compatibility of usage by the end users. After undergoing through all these processes one can generate their product in the market. Even knowing the hectic process beforehand also, there exists the competitors who copy the core process and change their brand name, shape, size and color to prove themselves unique. The one who worked hard behind the product loses their value and uniqueness owing to the fact that the competitors introduce it in a budget-friendly manner to gain attraction and sales. Consumers prefer the same and do not value for the owner, as money is one of the considerable priority in front of them.

Here requires the addition of laws pertaining to ‘smell trademark’ in India as one requires to undergo through lengthy process from generating an idea to its screening to conceptual development and has to undergo through its compatibility test then marketing and sales and lot more. The value of a product is based on many factors such as its raw material cost, manufacturing cost, packaging cost, trademark registration cost, advertising cost, patent cost and many more hidden costs. Trademark registration, although is legal protection of one’s brand, marks, logos, letter has to also put focus on non-conventional factors such as smell, taste, motion, sound, etc which also has equal importance of the above factors. This is to ensure that any of the product developers should not miss their ownership in any of the elements which have the capability of being misused by other competitors someday.

Author: Maria Rose Jopaul, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or IP & Legal Filing