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.

Smell Trademarks

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.

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