Smell trade marks

As a marketing strategy, manufacturers of goods introduce smells of scents to make the use of the products more pleasant or attractive. These goods could include cleaning preparations, cosmetics and fabric softeners. Even less obvious goods are now manufactured with particular scents to add to the product’s appeal, for example, magazines, pens, paper and erasers. Consumers of such fragranced goods are unlikely to attribute the origin of the products to a single trader based on the fragrance. Whatever may be the case, for purposes of registration as a Trademark Registration Consultant in Bangalore, unless the mark is ‘graphically represented’ it will not be considered to constitute as a trade mark.

As has been held by the European Court of Justice, an olfactory (smell) mark does not satisfy the requirements of graphical representation if it is presented in the form of a chemical formula, by a description in written words, or by the deposit of the odour sample or by a combination of those elements.

Although the ECJ Court found that an olfactory mark was, in principle, capable of registration, in practice it is going to be difficult to represent such marks graphically. The definition of ‘trade mark’ in the Indian law requires the mark to be “capable of being represented graphically”. So unless this requirement is satisfied, it does not constitute a ‘trade mark’.

The expression “trade mark” is defined inter alia to mean “a markcapable of being represented graphically and …..” Rule 2(1)(k) clarifies that “graphical representation means the representation of a trade mark for goods or services in paper form”. The purpose of graphic representation has been explained thus: “ it is essential for traders to be able to identify with clarity what the registered trade mark is. The first question that arises when infringement is in issue is whether or not the alleged infringing mark is identical to the trade mark registered. If it is, and is used in relation to the same goods, the trade mark has an absolute monopoly. Where, however, the mark is not identical but merely similar, the monopoly is restricted to uses, which create the necessary likelihood of confusion on the part of the public. This is the fundamental aspect of the law and it is for this reason that the graphical representation, being the means by which the trade mark is defined, must be adequate to enable the public to determine precisely what the sign is that is the subject of registration.” 1999 RPC 879, page 885. 

As indicated above, the definition of trade mark makes it clear that in order to constitute a trade mark it should be “represented graphically” [section 2(1)(zb)] An application which does not meet this requirements will face an objection under this section and in the case of “smell mark” the greatest handicap will be the inability of traders to meet the requirements for graphical representation http://www.trademarkregistrationinbangalore.in.