Introduction
In the world of intellectual property, trademarks are typically associated with logos, brand names, or even unique product shapes. But in recent years, a more abstract, yet intriguing, form of trademark has gained traction: the trademarking of scents. While it might initially sound unusual, scent trademarks are becoming increasingly popular, particularly in the fragrance, fashion, and consumer goods industries. But how do you trademark a scent, and what are its challenges? This blog explores this innovative approach to branding.
What is a Scent Trademark
To trademark a scent, you need to be able to show that your ‘scent’ has no functional purpose for the product. Instead, it is separate from the product.
In India, the Trademarks Act, of 1999, defines a trademark as a mark capable of being represented graphically and distinguishing one person’s goods or services from others. This includes non-traditional marks like sound, colour, and smell. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) does not offer comprehensive protection for non-traditional marks, but it does not completely prohibit their registration.
There are two essential requirements for trademark registration: the ability to be represented graphically and the distinctiveness from other products. Smell marks, also known as olfactory marks, are used to distinguish the source of goods or services based on their unique smell or odor. The primary aim of trademark law is to safeguard the public from confusion caused by similar marks while protecting the interests of the trademark owner and the goodwill associated with the mark.
Legal Requirement for a Scent Trademark
A scent trademark registration requires a complex legal framework, with fundamental requirements focusing on distinctiveness and non-functionality. The USPTO defines a protectable scent as unique enough to identify the source of goods and services and non-functional enough to prevent monopolisation. A scent must exhibit distinctiveness, signifying the source of goods or services, and not be functional, serving a utilitarian purpose beyond indicating the source. Understanding both national and international requirements is crucial for securing and maintaining trademark protection for unique scents. This ensures fair competition and prevents monopolisation.
Benefits of Trademarking a Scent
Brand Differentiation: A unique scent can create a memorable sensory experience, helping your brand stand out in a crowded marketplace. Think of the unmistakable scent of a well-known perfume or even the signature smell of a store—these can help elevate your brand and increase consumer loyalty.- Legal Protection: Trademarking a scent ensures that no other company can use a similar scent to confuse consumers. With this legal protection, businesses can enforce their rights and prevent competitors from copying their unique scent.
- Marketing Advantage: A distinctive scent can be a powerful marketing tool. Whether used in product packaging, stores, or advertisements, a memorable fragrance can leave a lasting impression, making it easier for consumers to recall your brand.
- Expanded Brand Identity: Scent can reinforce your brand’s overall identity. It creates an emotional connection with consumers, adding to the sense of luxury, freshness, or comfort that your brand aims to convey.
Famous examples of Scent Trademarks
Coty Germany GmbH v. Xeryus Retail Private Limited
The Delhi High Court issued a permanent injunction on July 21, 2023, restraining two websites, namely perfumery.co.in and unboxed.in, from selling perfume ‘testers’ bearing the “Calvin Klein” or “cK” trademarks. Additionally, the Court imposed a fine of INR 1 lakh on these websites, to be paid to Coty Germany, the global authorized licensee of Calvin Klein branded perfumes.- Chanel No. 5
Though Chanel No. 5 is a famous perfume, Chanel has never officially trademarked the scent itself. However, the brand has successfully used the fragrance as an identifying feature of its luxury goods.
Conclusion
The acceptance of scent marks for trademark registration is uncertain within individual jurisdictions, but a lack of uniformity regarding scent mark registrations might adversely affect national economies. There is considerable ambiguity about whether scent marks will become significant commercial assets in the future since they are currently minimal.
It can be said, therefore, that smell is a significant determinant in a person’s life. However, the lack of graphical representation and smell mark registration can sometimes be risky due to the random nature of smell or scent. However, with the right balance between the technology used by different trademark offices of different countries and trademark jurisprudence, a lacuna can be filled in the process of protecting smell marks.
