Smell Mark: Is it Possible to Trademark Smell in India?

Numerous researches have illustrated that smell can activate stunning and emotional memories. Also, it represents that the human sense of smell has amazing capacities but, Indian Law is yet to come into terms with smell mark. Still, the position of India is not static and is moving towards acceptance of unfamiliar marks. Scroll down to check more information regarding the smell Trademark.

An Overview of Trademark

A Trademark is an indication of quality that ensures that the product in question has come out from a specific source. The originality of a Trademark and its popularity attracts clients to it. In other words, Trademark is a logo, name, symbol, word, or design that differentiates the products and services of one company from others.

In India, all the Trademarks are registered by the Controller General of Trademark, Designs, and Patents, Ministry of Industry and Commerce, Government of India. The applicant can register the Trademark under the Trademark Act, 1999^[1]. Trademark Registration offers the right to sue or file a complaint against any unauthorized person who tries to imitate or misuse your mark. Also, no one can use a similar Trademark; you can use a similar Trademark to the one registered by another individual. Once you successfully register the Trademark, then you can use the R symbol, and it will be active for ten years from the date of Trademark registration. You can quickly get the TM symbol within three days; however, to get the R symbol takes up to two years.

Smell Trademarks

The scheme of Trademark has observed the publishing of unconventional forms of Trademarks such as taste, sound, and smell. While sound marks like Nokia Jingle is very common, smell marks are rare to find.

In fact, a smell mark was registered in the United Kingdom (UK) by Sumitomo Rubber for a floral smell as of roses as applied to vehicle tries. It came after the first US smell Trademark that was registered in 1990 after an appeal prior to the US Patent and Trademark Office, Trademark Trial and Appeal Board. The mark was for huge impact, fresh and floral fragrance evocative of Plumeria blossoms which were used in association with sewing thread & embroidery yarn.

Since then, there have been minor registrations of smell Trademarks. It also consists of the scent of bubble gum for cherry, grape, and strawberry lubricants for combustion engines. The primary reason for this is because they are explained subjectively and are open for an explanation. The difficulty that arises from the viewpoints of aroma leads to arguments that personalized views are sufficient when finds out whether the smell functions as a Trademark.  Furthermore, such smell marks are one of the most complex types to represent graphically.

Difficulties Faced in Smell Mark Registration as a Trademark under the Act

To understand the scope of registration, we need to determine their answer to some questions.

1. Is a smell mark efficient in fulfilling the Trademark functions?
2. Is a smell mark efficient in fulfilling the object of Trademark Law?   
3. If smell mark comes under the definition & meaning of Trademark, then how it is none of the most complicated types to show graphically?

We will solve such questions separately. To answer the 1^st question, the Trademark functions consist of identification, quality, source, and advertising. Where a Trademark meets the functions mentioned above, it is irrelevant whether it is unconventional or a conventional mark. The nature of the Trademarks Act allows the marks (Smell) to be placed in the Law of Trademark. Clients may treat a specific smell on a product or in its packaging as representing a brand. Like any other product, it would be able to recognize and differentiate goods or services. In the case where the client already associates the fragrance with the source of the registration product may look sensible.

The objective of the Law is to safeguard the customers from confusion, and it also safeguards the business of the Trademark owner and their goodwill that is attached to the Trademark.

The creators of Law (Trademark Law) in India searched for modifying the Law; therefore, an open-ended and comprehensive clarity has been furnished for the mark. Opinion in another way, unconventional marks determines a place in the mark’s definition. This also consists of marks such as sound, smell, etc. Generally, a Trademark may be anything that recognizes the sources of products and services.

Unconventional marks have no longer been an isolated idea in the world of Trademarks. It indicates the need to clarify our domestic Law by enclosing irregular marks in the scope of registration.

Following are two vital requirements under Trademark:

• It must be efficient of being represented graphically;
• It must be able to distinguish the products or services of one individual from the other.

To ensure that it’s understandable to anyone auditing the claim registry for Trademarks, a clause may be added expressing the disclosure of the test conditions. Similarly, high-end smell sensors may be used that are highly complicated. This may overcome the hindrance that represents graphically. Such a method will increase the search for objectivity in the registration of the smell.

For the registration, a well-drafted and hugely specific written explanation must be written that can be approved by a set of experts. It may result in a journey for Trademarks in India.

Graphical Representation of Smell Mark

The issue with this mark increases while recording the smell for the registration as a Trademark. It cannot be noted graphically, neither can it be stored in a bottle as it would degrade. Furthermore, there is no such chemical formula for the smell. There are some different ways which can be conceived so that there is no ambit of confusion, but Indian Law does not consider such ways and permits for only graphical representation to describe a Trademark.

The EU Trademark Directive that came into action in starting 2019 has removed the need for a graphical depiction of Trademarks while applying for registration. The criteria now advised that the sign must be capable of being shown in a way to create enough clarity about the mark being safeguarded.

Conclusion

The Law of Indian Trademark currently does not allow the registration of smell marks. The toughness of graphical representation can be re-evaluated, and here the instance of the EU Directive can be taken. Other methods of descriptions can bring in different unconventional Trademarks.

Read our article:How to File a Complaint Against Trademark Violation in India?