The basic rationale behind the trademark as a word, symbol is to distinguish one’s gods and services from those of others.
The basic function of a trademark is to distinguish proprietor’s goods and services from those of others. Over the past few years, a new push for registration of trademarks has been given in the unexplored areas where competition is at pace. The ambit of Intellectual Property Law has therefore taken unprecedented levels and along with it, the trademark protection is broadened all over the world.
In recent times, non-conventional trademarks are widely accepted for the expansion of definition of trademark under the legislations. The Olfactory marks contrary to the traditional trademarks cannot be graphically represented even after its high level of peculiarity and therefore, the Olfactory mark faces huge difficulty for its registration.
There has been no eligible system till date for graphical representation of olfactory marks. Different countries of the world have adopted different methods for registration of Trademarks. Generally trademark registrations are allowed when the mark is distinctive in nature, but in case of olfactory marks there are no set parameters to represent olfactory marks graphically in clear, precise, self-contained, easily accessible, intelligent and durable mark: like representation of scent in words is not objective, a chemical formula is insufficiently intelligible and a sample of scent is not durable enough. In some of the countries smell marks are registered if in the application a graphical representation of an olfactory mark is made and in some cases, the description of a smell of a product is protected under copyright law.
UK and EU Perspective
A mark can be simply registered in European Union if a mark is comprehensible, self-contained, durable, objective and accessible. The mandatory requirement for registration of a mark is that a mark should be perceived unmistakably by one and all. Absence of this might lead to its non-registration and infringement of the mark of another. Since we all know that the olfactory mark could not be represented graphically, then the question arises whether it can constitute a trademark? First time this issue was arisen in the European Court of Justice (ECJ) in the case of Siekman Case and held that visual perception of a mark is not a necessary condition as far as the mark could be graphically represented by its proprietor.
United Kingdom Court in the case of R Vs John Lewis has refused an application for “the smell” aroma or essence of cinnamon as a trademark for furniture. The trademark was refused by the court as the verbal description was found not being enough to be considered as a graphical representation. But the decision would be different if it would have been taken with reference to certain standards. Like a smell of fresh grass is registered for tennis balls, the odour of beer has been registered for dart flights and smell of roses for tyres have been registered as European Trademark under Trademark law of UK. However, this registration could be challenged as per Siekman case. Therefore, it could be concluded that taking registration of olfactory is quite a difficult job.
In the United States of America olfactory registration is possible even if it could not represent itself graphically, when it is given in writing about its complete description, under the Trademark Manual of Examining Procedure. The argument for accepting the smell as a trademark was based on the premise that scent is comparable to the colour and hence is registrable.
The definition of Trademark as per Trademarks Act, 1999 is “a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging and combination of colours or any combinations thereof.”
The protection of the smell mark is not addressed in TRIPS agreement, EC directive, or Community Trademark. India having derived its trademark law from TRIPS, neither registers the semll marks nor considers the protection of these marks in the court of law under the Intellectual Property Rights regime.
Therefore, from the adobe stated criteria it could be concluded that every country has its own criteria in order to register olfactory registration, whereas as of now in India olfactory registration has not been introduced therefore in India smell registration could not be done.
However, in other countries like EU, UK and USA registration of olfactory registration is there subject to their distinctiveness.