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Pankaj Tyagi
| Updated: 17 May, 2021 | Category: Trademark

Smell Marks: A Non-Traditional Trademark In Search Of Recognition

Smell Marks: A Non-Traditional Trademark In Search Of Recognition

The ever-evolving competition in the business realm forces businesses & enterprises to be distinct, to stand out to cultivate an increased customer base. Apart from massive investments in marketing & lucrative offers, the primary mode they adopt is by way of trademarks. A trademark is a kind of assurance that products or services in question are from a specified source. The more popular & unique the trademark, the more likely it is to lure customers. Now, in general, a trademark refers to a word, emblem, illustration, and design that identify the source of goods and services of one company from those of others. But, its applicability doesn’t stop here. In this write-up we will talk about the Smell Marks: A Non-Traditional Trademark In Search Of Recognition.

Smell Trademarks: An Untraditional Trademark

The trademark realm has now witnessed the emergence of untraditional forms of trademarks such as sound, taste, and smell marks. While sound marks like the iPhone jingle are widely recognized these days, smell marks are rare. Factually, the first small mark was registered by Japanese based organization, viz Sumitomo Rubber, for the floral fragrance as applied to automobile tires.

This was followed by the United States smell trademark to be registered in 1990 after a petition filed before US Patent & Trademark Office (USPTO) Trademark Trial and Appeal Board (TTAB). The mark was registered for a floral fragrance reminiscent of Plumeria blossoms utilized regarding embroidery yarn & sewing threads. Since then, fewer smell mark registration came to light, such as bubble gum scent for sandals & grape and cherry lubricants for combustion engines.

Read our article:How Can You Apply For Online Trademark Registration in India?

Underlining reasons for Fewer Registration

The primary reason for fewer registrations is that the smell marks are defined subjectively & are open to interpretation. The complications that emerge from human perceptions of smell lead to the disagreement those subjective views are not sufficient when determining whether such marks function as a trademark. Further, smell trademarks are undeniably one of the most complicated types to manifest graphically.

Instead of the repeated utilization of these untraditional marks in the worldwide market, it lacks universal acceptance due to the presence of territory-wise registration. But, on the other hand, one of the most significant changes has been inculcated by these latest trademark forms in the prevailing trademark law and the continual struggle for the lawmakers to assure the balance between technological improvements and intellectual property laws.

Trademarks can be bifurcated into two essential categories: traditional and non-conventional brands. Trademark is widely linked with words, emblem, symbol, or other sign used for familiar proof of services & merchandise provided by one maker.

Nations that defies the notion of smell marks under a trademark regime

Brazil

 The only marks that are eligible for registration in Brazil are visual-based signs. Thus, smell marks are not registrable under Brazilian trademark law.

 China

Aritcle 8 of Chinese trademark law limits legally enforceable trademarks to visual-based symbols. Hence, scent marks stand ineligible for trademark registration in China[1]

 Mexico

Article 88 cites under the Mexican Industrial Property Law clearly emphasizes the visible signs. Hence, scent marks stand ineligible for trademark registration in Mexico.

Opinion of Indian law about the Smell marks

As per the Indian Trademarks Act, a trademark is a mark that can be graphically manifested and capable of differentiating goods or services of one entity from those of others. Moreover, a mark is defined as one that includes a brand, device, label, heading, name, word, ticket, letter, packaging, numeral, shape of goods, color combination.

Additionally, given Rule 25 (12)(b) under Trademark Rules, 2002, an application regarding trademark registration stresses the graphical depiction while Rule 28 and 30 seeks visual representation on paper in durable form. Hence, this requirement creates a hindrance for the recognition of olfactory marks under the trademark regime.

Why are Smell Marks Impractical to be Registered?

Smell Marks Impractical

Non-conventional trademarks refer to those marks that defy the fundamental concept of trademarks. Such trademarks are not restricted to devices, symbols, name, and packaging; but are also extended to motion marks, 3-D marks, smell marks, sound marks, etc. The concepts of smell marks have developed as an outcome of firms giving smell and fragrance to their products to be easily identified in the market.

The Indian Trademark law doesn’t have backing for this subject matter. This truancy will restrain the judges in determining the cases regarding the smell marks. To get smell mark registered, it’s essential to manifest the smell graphically, which of course, is an impractical and cumbersome undertaking. 

The smell is largely influenced by humidity and wind conditions. Due to that, the smell may get strengthened or weakened. The perceptibility of the smell is yet another essential factor in this context, and therefore, an individual’s mental abilities and sensitivity play a crucial role in determining a smell mark. 

As an outcome of this, no simple formula can be applied in this part of a legal framework, inter-alia, opening a room for arguments. So it can be concluded that the correct manifestation of smell is vital for trademark registration.  

Conclusion

Trademark acts as a source identifier that prevents customer confusion about a specific good or service. With the source identifier evolving with time, trademark recognition has moved beyond the regime of goods and services. Today odor, taste, feel, and color also play a vital role when it comes to product recognition.

As per some experts, the recognition of Non-Conventional Marks under a trademark regime would create unfair competition and monopoly into the market. Further, it would undermine the concept of a free trading economy by advocating unfair competition. Thus, in a nation like India, Non-Traditional marks still have to cater to many hindrances and have a long way to go. The emergence of new technologies into the identification of a trademark may extend the scope of the prevailing law, and it may likely consider such marks in the future. 

Read our article:Grounds for the Refusal of the Trademark Registration

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Pankaj Tyagi

Pankaj has a diverse experience of writing research papers, blog, and articles during his college time. Earlier, he was working as a tax consultant in a financial firm, but his interest in writing drives him to pursue a career in the writing field.

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