This is my second post about unconventional and unusual trademarks, like sound, smells, tastes and textures, not just visual signs. Last time I blogged about sound marks. Here I write about scents, smells or olfactory trademarks.
The Sense of Smell:
Is there commercial sense for applying to register a scent or smell as a trademark?
Smell trademarks are certainly unusual trademarks, not just for what they are, but also for their up and down history. Even only ten years ago scents and smells were spoken of as one of the next potential big expansions in the field. Although it is accepted that smells can be registered as trademarks, the current practice governing how they must be graphically represented means that there are no smells now registered as Community Trademarks. This difficulty goes back to 2002 and it’s a long time since the sweet smell of success was experienced by an applicant.
You might think that there would be a great incentive for certain companies to register smell or scent trademarks. But the purpose of trademarks is to distinguish the origin of goods from other goods, not to protect the essence of a product, its physical make-up. The obvious link between scents and the function or make-up of products that we associate with them, such as perfumes, foodstuffs or even medicines suggests that scents or smells associated with these types of products might never be registered unless very significant acquired distinctiveness can be shown.
There is something of a mental leap needed to associate smells that were successfully registered as trademarks with the products they were registered for. And that is perhaps the genius of them. These include ‘the smell of fresh cut grass’ registered as a Community Trademark in 2000 (after a four year application battle) by the catchily named Vennootschap onder Firma Senta Aromatic Marketing. In the US, scented yarn was registered in 1990 and many years later a cherry scented lubricant for vehicles.
So why have distinctive smells and scents not taken hold as trademarks? There are two related reasons. The first governed by trademark practice and the other more Darwinian. Ultimately, it is because the sense of smell is so individual, both physically and subjectively.
Shortly after the smell of fresh cut grass wafted in the Community Trademark air, the European courts rowed back significantly from that decision in an application for a German trademark. Mr. Sieckmann applied to register a smell described as ‘balsamic fruit with a slight hint of cinnamon’ as a trademark for professional services. The court set down three rules about graphic representation:-
- graphical representation must enable the sign to be precisely identified;
- the representation needs to be self-contained, easily accessible and intelligible; and
- the representation must be durable, unequivocal and objective.
So what’s the problem? Well, would you recognise the scent of balsamic-fruit with a slight hint of cinnamon? What about the person next to you? Do any of us have the same sense of smell? Here’s what America’s Sense of Smell Institute has to say:
- No two people smell the same odor the same way.A rose may smell sweeter to some people than to others.
- A person never experiences one smell the same way twice.
- A person’s ability to detect odors changes from day to day, depending on his or her physiological condition.
Mr Sieckmann had three cuts at describing the smell to meet the graphic representation threshold. He presented the chemical formula, a sample and the verbal description of the smell. But three wasn’t a charm and the court found that none of these, or even all three together were capable of meeting the test.
While you might think that the formula should accurately represent a smell, there are many variations possible even in a strict formula and it just does not cope with the individual sense of smell that each of us has. Basically, there’s no accepted matching system, like Pantone, for smells. And until there is, can a chemical formula be truly said to be easily accessible and intelligible when searched on the trademark register. Or a sample, which can decay over time? Perhaps only to a specialist group of people, probably not your average trademark agent or lawyer.
Commercial opinion so far? Why bother! Only 7 Community Trademark applications, none filed since 2003 and only one, the first, actually registered. You can check them out here by selecting olfactory from the trade mark type drop-down menu.