The ever increasing competition in the business world compels
corporations and businesses to be distinct; to stand out in order
to garner a larger consumer base. Apart from huge investments in
advertising and attractive offers, the prime mode that they adopt
is by way of trademarks.
A trademark is a sign of quality; it is an
assurance that the product in question has emerged from a
particular source. The more unique and popular the trademark, the
more likely it is to attract consumers.
Now, in general parlance, a trademark is defined as a word,
phrase, symbol and/or design that identifies and distinguishes the
source of the goods of one party from those of others. However, it
does not stop here.
The trademark regime has now seen the emergence of
unconventional forms of trademarks such as smell, sound, and taste
marks. While sounds marks like the Nokia jingle are pretty common
these days, smell marks are a rare breed. In fact, the first smell
mark was registered in the United Kingdom by Sumitomo Rubber for a
floral fragrance or smell reminiscent of roses as applied to
vehicle tires. This was followed by the first US smell trademark to
be registered in 1990 after an appeal before the U.S. Patent and
Trademark Office (USPTO) Trademark Trial and Appeal Board (TTAB).
(See In re Celia, dba Clarke's Osewez, 17 USPQ2d 1238 (TTAB
1990)). The mark was for a "high impact, fresh, floral
fragrance reminiscent of Plumeria blossoms" used in connection
with sewing thread and embroidery yarn.
Since then, there have been very few registrations of smell
trademarks which include bubble gum scent for sandals, and
strawberry, cherry and grape lubricants for combustion engines.
The primary reason for such a low registration of smell marks is
because they are defined subjectively and are therefore open to
interpretation. The complications that arise from human perceptions
of odors lead to the argument that subjective views are inadequate
when determining whether the smell mark functions as a trademark.
Further, smell trademarks are arguably one of the most difficult
types to represent graphically.
What does the Indian law say?
Under the Indian Trademarks Act, a trademark is defined as a
mark capable of being represented graphically and which is capable
of distinguishing the goods or services of one person from those of
others. Going further, a mark is defined as one that includes a
device, brand, heading, label, ticket, name, signature, word,
letter, numeral, shape of goods, packaging or combination of colors
or any combination thereof. In addition, in accordance with Rule 25
(12)(b) of the Trademark Rules, 2002, an application for trademark registration mandates its
graphical depiction while Rule 28 and 30 requires that it be
represented on paper, in a durable form. Therefore this requirement
acts as a significant impediment to the recognition of olfactory
marks as a legitimate trademark in India.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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