The realm of trademark law traditionally encompasses visual symbols, logos, and phrases that distinguish goods and services. However, as markets evolve, so too does the scope of intellectual property. One emerging and intriguing category is olfactory trademarks—scents used to identify and distinguish products or services. While olfactory trademarks are recognized in some jurisdictions, their status in India is still developing. This article explores the concept of olfactory trademarks, the challenges of their registration in India, and the potential future of scent-based branding in the country.
Olfactory trademarks refer to distinctive scents used to signify the source of a product or service. Unlike traditional trademarks, which rely on visual or sound recognition, olfactory trademarks engage the sense of smell. Examples could include the unique scent of a retail store or a specific fragrance associated with a product, such as Play-Doh's iconic smell.
In some regions, olfactory trademarks have gained recognition. For instance, the European Union and the United States have registered certain scent trademarks, such as the smell of freshly cut grass for tennis balls and a floral fragrance for sewing thread. These jurisdictions have established legal frameworks that allow for the registration of scents, provided they meet specific criteria for distinctiveness and non-functionality. For example registration no. 3849102 in the USPTO is for a scent mark. In the trademark column the mark is mentioned as a NON- VISUAL MARK. The description of mark as provided in the application is 'The mark consists of a rose oil scent or fragrance.'. This mark is registered and renewed.
Recently, toy giant Hasbro has become the latest company to join
the small group of brands with a registered scent mark in the
United States Patent and Trademark Office (USPTO).The scent of
Play-Doh, described as "a sweet, slightly musky, vanilla
fragrance, with slight overtones of cherry, combined with the smell
of a salted, wheat-based dough", is said to have acquired a
distinctive scent through long-standing use. A tub of Play-Doh was
submitted into evidence alongside significant proof to support this
claim of distinctive scent.
Smells and tastes are currently not recognized as trademarks in
India. One of the primary challenges in registering olfactory
trademarks is the requirement for graphical representation. Indian
trademark law, like many others, traditionally mandates that a
trademark must be represented graphically. This poses a significant
hurdle for scent marks, as scents are inherently non-visual. The
requirement to visually represent a scent, such as through chemical
formulas or written descriptions, is a complex and debated
issue.
Additionally, for a scent to qualify as a trademark, it must be distinctive and not functional. This means the scent should be unique enough to identify the source of the product and not merely serve a utilitarian purpose, such as masking unpleasant odors. The scent must not be a functional aspect of the product. For example, the lemon scent in a cleaning product cannot be trademarked if it serves the functional purpose of implying cleanliness.
Furthermore, establishing that consumers associate the scent with a particular brand or source is challenging. Unlike visual or auditory trademarks, scents are less likely to be immediately recognized by consumers as indicative of origin.
Recently, on March 23, 2023, Japanese company Sumitomo Rubber Industries, Ltd filed an application for an Olfactory trademark in India. The graphical representation of the trademark has been provided as 'floral fragrance/ smell reminiscent of roses as applied to tyres'. Sumitomo Rubber has mentioned in the conditions column trademark application that – The trade mark is an Olfactory smell trademark for tyres that smell of Roses'. The trademark Registry has re-examined the application and has raised an objection that presently their module does not accept examination of smell trademarks. Also, the smell has not been graphically represented. A hearing will be appointed in the matter. Probably, this application will clear the air regarding graphical representation with respect to olfactory trademarks.
However, the position on attars is relatively clear. Attars fall within the ambit of Traditional Cultural Expressions ('TCE') category as defined by WIPO. Also known as "expression of folklore", TCEs include cultural expressions such as art, music, dance, or any other artistic or cultural expression. Attars of Kannauj are popularly known as 'Kannauj Perfume' and were registered as Geographical indications in 2009 due to high repute and the linkage between Kannauj and attar.
As of now, Indian trademark law does not explicitly recognize olfactory trademarks. The Trade Marks Act, 1999, and the Trade Marks Rules, 2017, emphasize visual and graphical representation. While there is no express prohibition against olfactory trademarks, the current legal framework does not provide clear guidelines for their registration.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.