“Smell is a potent wizard that transports you across thousands of miles and all the years you have lived. – Helen Keller”
As a consumer, we are aware of the application of trademarks for that it refers to the quality and provides assurance as to the source of the product. The world market is getting more and more competitive and hence standing out becomes necessary for the sustenance of the product.
This article deals with the development of trademark law into an unconventional form of mark known as smell marks which refers to the protection of a particular scent or aroma that a product is composed of. It also tries to specify the various aspects for the development and registration of smell-marks in India.
Difficulty or Challenges in Relation to Smell Marks
Scents always create and reflect memories. Businesses try to induce these smells onto their products as a part of their business strategy and product development.
Trademark, as we know, is defined as a word, symbol, phrase, design, and so on, which helps in recognition of the product. It imparts uniqueness to the product.
To obtain registration with regards to smell is a difficult process. It is hectic and tedious. The applicant needs to represent the smell visually. Moreover, it is to be shown that this scent is distinctive.
If we were to represent it using its chemical formula, then the chemical formula represents the substances of the product and not the scent. Also, if written, the characteristics of the scent must be accurately and precisely quoted so that it will specifically depict such distinction.
Thus, the registration process is complicated and time-consuming. Olfactory marks, smell marks, or scent marks are non-conventional trademarks.
Another issue with the smell mark is its universal application. Many countries do not even recognise these non-conventional trademarks. Along with that, the scent or smell of something is subject to depletion over time. This is a fact that we must consider again.
Smell Marks in Indian Trademark Law
The definition of “trademarks” is provided in the Indian Trademark Act, 1999. It defines trademarks as a mark that can be represented graphically and is capable of distinguishing the goods and services of one person from another.
The above definition of trademarks does provide any reference as to the smell marks. Although the definition does not blatantly include or exclude the smell marks and their registration process, the area of smell marks is still an underdeveloped arena.
Smell Marks is a very dynamic area under the trademark law. It is ever-evolving and is of high scope. Although Indian trademark law explains the term mark as name, device, heading, signature, word, letter, and so on. It does not provide an exhaustive list. Thus this scent mark is an area under development in the country.
Although this is an interesting and innovative area under the trademark law with a high potency of its development, its functionality in Indian society is highly speculative.
As mentioned in the introduction part, to get it registered under the trademark law, the graphical representation of the same is necessary. The graphical representation is a doubtful scenario when it comes to the trademark. Further, the smell as such cannot be trademarked; the smell should have a quality or distinctiveness of the product that needs to be trademarked. Further, as per the Functionality Doctrine, if the so-called scent acts as a functional element to the product, it cannot be trademarked.
The Functionality of Smell Marks in Indian Society
It is a very complex and difficult process to identify and register these scent marks. Indian trademark law asks for the graphical representation of the feature, which is to be trademarked, but as the scents cannot be graphically represented, the scope of the same is cut off.
But in the Zippo Manufacturing Company and their famous windproof lighters case, the Indian court recognised a non-conventional trademark, that is, the shape of the lighter. Similarly, we can expect that the courts will recognize more non-conventional trademarks and apply the same. We can also hope for amendments to the current IP laws, which is the need of the hour.
International Application of Smell Marks
The smell marks and their application gained popularity in the famous case Ralf Sieckmann vs Deutsches Patent und Markenamt. This is a landmark judgement by the European Court of Justice and is based on the necessity of graphical representation of non-conventional trademarks.
In this case, the applicant applied for a “methyl cinnamate” scent and described the same as “balsamically fruity with a slight hint of cinnamon”. The question was whether this description amounts to the graphical representation of the scent that is to be trademarked. Balsamically refers to as something that is Balsamic.
The European Court of Justice held that just a description of this kind cannot be treated as a graphical representation. It further held that a chemical formula representing the scent, a written description of the scent, or a physical sample of the scent does not constitute its graphical representation. This case law is a classic example that quotes the difficulty of smell marks and their registration.
The first smell mark was registered in the United Kingdom by Sumitomo Rubber. It used the floral fragrance of rose in its tires. Likewise, a few other registrations were also made in the United States.
Smell Marks – Analysis and Conclusion
Smell, sound and taste belong to the category of non-conventional trademarks. These are not widely accepted internationally but is still under consideration. The reason is its complexity and lack of having proper and combating laws to accommodate the same.
As discussed in the article, non-conventional trademarks are being used and accepted in countries like the UK, the USA, etc. The application of the same for the rest of the world is still a developing one.
The challenge that India is facing at this moment is with the registration process. The registration process to function smoothly needs to be made more lenient, but such leniency will create a doubtful pose as to where the law stands.
The non-conventional trademarks are definitely a challenging one. The Intellectual Property Law needs to develop multifold to give space to such complicated fields. Domestic and international laws need to adapt in such a way that they will accommodate such small yet complex aspects. Intellectual property rights are ever-evolving and dynamic; hence we need more research and development in specific fields of intellectual property.