Protecting Smell Marks: Breaking Conventionality

Abstract

<span style="font-size:9.0pt;mso-bidi-font-family:" times="" new="" roman""="" lang="EN-GB">In today’s era, there are examples of many Fortune 500 companies’, products and services of, which directly market their business upon different senses of its consumers, such as smell, taste, sound etc. Smell, one of such senses, has always been one of the strongest which individuals have relied upon in their day-to-day activities. Studies have shown how a particular smell can trigger one’s memory, affect one’s mood and of course make companies, like Chanel, earn millions.

<span style="font-size:9.0pt;mso-bidi-font-family:" times="" new="" roman""="" lang="EN-GB">Traditionally, trademark has been affiliated to words, names, symbols or any other sign used for identification of goods and services provided by the manufacturer, which had restricted the provision of protection to goods and services to brand name and logo and not on the specific products. Though the arguments on this issue started in 1980’s only, it is still one of the least discussed aspects of IP in many jurisdictions. Due to the advancement of technology and development of jurisprudence, trademark offices and courts of different jurisdiction have started grating protections to a distinguishable smell/odour which can be represented graphically, in order to determine origin of goods and services. Through this paper the author has analysed the basic science of how a ‘smell’ can be distinguished from another and thus qualifies as a subject matter of protection. Further, the paper also focuses to examine the development of law in regard to protection of smell mark in various jurisdictions and few suggestions have been provided after analysis, which could be adopted by Indian TMO.

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