Author-Manasvi Gupta,
NorthCap University.
Do you know any trademarked, familiar sounds and smells?
We may all have had an experience where we walk by a road or street and are drawn to a particular smell. It might be someone’s perfume, shampoo, or delicious food by the roadside, or sometimes even trash, accompanied by a feeling of disgust. A similar experience also happens with sound. Walking in a garden or a park, listening to the birds, gets us hooked. There are many sound effects and music which is trade marked across the globe that we will instantly recognize, Remember the sound old Nokia mobile phones made when you turned it on, or the iconic ‘Avengers Assemble’ sound, and also not to forget ‘The Harry Potter’s Hedwig’s Theme’ none the list our most familiar Netflix’s bang on starter sound effect. We all know these sounds, it must be playing in your head as you read it, but what about smells? Is that also trademarked? Yes, it can be, but it’s a tricky process. To understand the Trademarking of a scent, we first need to understand what exactly a trademark is…?
Trademark- what’s that?
A trademark is a form of recognition for a brand, product, or service that sets it apart from other similar brands and products/services in the market. For example, the ‘20th century FOX’ opening sound features drums and trumpets, we can also look at the famous, I’m lovin’it from MCD, also the unforgettable character Ronald McDonald by McDonald’s. Anything that is registered and distinguishes the product or service of a brand from those of its competitors is a trademark. It can be any word, phrase, symbol, design, sound, smell, or a combination of these elements which is not formally registered by anyone else. A trademark is treated as the property of the trademark holder. It establishes Goodwill of the Brand as well as legal protection of both the brand and customer.
Beyond Logos: The Rise of Non-Traditional Trademarks
If we take a dip into the depths of the trademark history, we will observe that, traditionally, trademarks were mainly only taken for logos, photos, names, words and taglines by the companies. The reason for this was firstly the simple lifestyle of the people as well as the brand, and secondly, there was no knowledge of the trademarks’ expandability. Although now the brands are running to find different and unique elements, such as Sound, Smells/scents, shapes and even colours.
There are many weird trademarks made by companies and celebrities, like the renowned celebrity singer Taylor Swift has trademarked the names of her 3 cats and also the famous phrase ‘this sick beat’ from her song ‘Shake It Off’, not to forget the winning gesture made by the world-famous runner Usain Bolt’s ‘Lightning bolt’ position. All of us know about the bright pink colour we all might have loved as a kid on our blonde friend Barbie; this signature colour is trademarked by the brand, and so is the blue on a Tiffany box, but we have not reached the weirdest one on our list. Remember Star Wars, one of the most loved movies of all time, and the infamous Darth Vader from the movie series. The sound of Darth Vader’s breath is trademarked by Lucasfilm. Now you know the craze of trademarks, although it is not that popular in India yet, but it is sure to grow with time.
Why is Trademarking a Smell a hustle?
Under the Trademark Act 1999, a Trademark is defined as a mark capable of being represented graphically and capable of distinguishing the goods or services of one person from those of others. In the definition it is specifically mentioned that a mark capable of graphical representation can be a trademark here comes in the hustle, representing a smell in a graphic form is a difficult task, one can argue that the forming part of the scent like flowers and sandalwood can be added as the graphic representatives in a true trademark, it can be, albeit, the contradiction arises when it comes to the scents which can’t be represented graphically also the fact is that a small amount of wrong quantity of any of the fragrant can change the whole smell. Hence, the olfactory trademarks are a hustle, but it is not impossible; there are olfactory trademarks which have been issued. For example, do you remember the sweet scent of kids’ clay play-doh? Yes, the sweet childhood memory of ours is a trademarked fragrance. Although there is less awareness of non-conventional trademarks in India but they sure exist, and one can even mark them theirs, but only if they prove it.
An Analysis of the TRIPS Agreement in Protection of Intellectual Property
Global Differences: How Countries Treat Scent and Sound Trademarks.
Smell and sound are non-traditional kinds of trademarks; these kinds are not very popular around the globe, although USA is a bit advanced in this matter, but at the same time, it is also very vigilant. The USPTO makes sure of Distinctiveness, Non-functionality and Capability of identifying the source of goods/services. Looking at the European Union Intellectual Property Office (EUIPO), before 2017, it followed a similar rule as in India, EUIPO demanded a graphic representation of the trademark, although in 2017 the requirement of the graphic representation was dropped and the famous MP3s for sound and chemical formulas and written descriptions for scents and smells was taken into the consideration however smell trademarks are still rare. Coming to India, we still believe in the traditional approach to trademarks, as our act still suggests a graphical representation. There is no official recognition to smell smell-based trademarks, nor is there any case or judicial precedent. Although there are sound-based trademarks approved based on the musical script and sound recordings. On the global level, sound trademarks are making their place in the market slowly and steadily; however, smell-based trademarks come with a tricky side, and these are extremely rare as well as scrutinised.
Challenges and Controversies in Sensory Trademarks
Agreed that the idea of having a unique trademark is extremely appealing, yet due to the laws, legal practices and practical challenges it makes it difficult to gain trademarks. There are many problems, some of those being 1. Difficulty in Representation and Description: unlike logos and symbols, which are part of traditional trademarks, it is somewhat difficult to identify and differentiate between sounds and smells. Sound marks must be submitted in an audio format (e.g., MP3) and accompanied by a clear musical notation or written description, and smell or scent marks are harder to represent. A chemical formula or a written explanation may not accurately or universally capture the aroma. 2. Proving Distinctiveness – any kind, from traditional to non-traditional trademarkeables, should have distinctive properties which differentiate between the trademarked and other smells and sounds. 3. Enforcement and Infringement issues – even if the sensory trademarks are recognised and are granted, it will be difficult to enforce and prove the problem. What could be the argument to prove that another product has an identical or confusingly similar scent? 4. Global Inconsistency in Legal Standards – Last but not one of the most problematic ones. The problem will arise when a smell trademark is in Europe, will not be recognised legally in India or USA, which will result in disputes and can be a legal nightmare for multinational companies, which can ultimately result in the rupture of the globalisation of such brands.
Why Brands Are Going Beyond Sight: The Rise and Future of Sensory Trademarks
Whether the market is global or domestic, the competition in the market is huge, hence companies opt for crazy, unique and standout ideas to make a recognition of their brand in the market. These days, brands don’t only seek recognition but also an emotional connection between the brand with the customer with the help of sounds and smells. Using such non-traditional approaches is part of strategic brand differentiation. With shifting trends, marketing has taken a twist towards the out-of-the-box and spontaneous techniques to gain more customers and also give customers a totally new experience, one of which marketing strategy is the sensory influence by sound and smell, which is further being trademarked for the unique identification of the brand. However, for this potential to be fully realised, intellectual property law must evolve and open the spectrum there are many changes needed in the legal world of Intellectual property like new and clearer frameworks for non-traditional mark registration since these are becoming more and more famous and can have a great potential in the marketing sector shortly, address subjectivity and standardization by new laws and even with the help of sound and smell experts. One can also bring a Harmonise international trademark protocols, which can help resolve the ‘different trademarks in different countries’ issue.
The journey may be complex, but the destination is promising: a world where branding is not just seen or read, but heard, smelled, and felt. How magical would that be?
About the Author
