law and ‘odor’: establishing a case for olfactory marks in Indian IP landscape

INTRODUCTION

One of these unusual marks is known as an "Olfactory Mark". A "smell" is felt or perceived by an individual through stimuli that influence the olfactory nerves in their nasal cavity. People use smell, as well as sight and sound, to connect with one another. When people smell something, they form distinct associations and recall memories. Although it cannot be mistaken for something identical, it can be legally protected by being registered as a trademark. Numerous studies have found that fragrance has an effect on human behaviour. For example, it is widely agreed that "Petrichor," or the smell of rain as it falls to the ground or combines with the mud, has a calming impact on humans. Businesses globally want to protect their smell marks under trademark laws, as people are continually exposed to odours that communicate product information.

In the scent-sational world, premium perfumes have an irresistible draw. Iconic companies like Chanel, Dior, and Tom Ford have raised the bar, creating smells that are not only olfactory masterpieces but also status symbols. However, the high prices of these perfumes have resulted in the growth of "dupes"—low-cost imitations attempting to reproduce the scents of these prominent names. A few firms, such Bella Vita and Plix Perfumes, have even gained notoriety for openly presenting themselves as manufacturers of low-cost alternatives to these high-end fragrances. The rise of dupes creates complicated legal and ethical problems, particularly in the area of scent mark protection, given that intellectual property rights seek to promote innovation and creativity by offering protection to original ideas. This phenomenon is especially noticeable in the perfume industry, where famous scents are frequently rendered susceptible by the strict and somewhat irregular enforcement of trademark regulations. The current state of affairs presents urgent legal concerns regarding the universal protection of smell markings and if it is appropriate to reconsider their protection in India.

 OLFACTORY MARKET – A LEGAL PERSPECTIVE

Three categories can be applied to olfactory markings based on the particular products they are associated with:

1 Deodorants, perfumes, and other products that release fragrances just for the purpose of emitting odours and have no other use are considered primary scent markers.

2. Products with "secondary scent marks" include soaps, beauty bars, body washes, body lotions, serums, detergents, and other things where the fragrance is a necessary component but is not employed for the primary purpose of the product.

3. Items, such as an embroidery thread, that are unaffected by the fragrance are referred to as having "unique scent markings."

The idea of trademarking a scent was first recognized in the United States with the In re Clarke decision in 1990, where the United States Patent and Trademark Office (USPTO) granted trademark protection for a scent of plumeria blossoms for sewing thread and embroidery yarn. This landmark ruling set the stage for subsequent registrations of scent marks. In Europe, the Sieckmann v. German Patent Office case in 2002 clarified the conditions for registering olfactory marks under the European Trade Mark Regulation, which mandates that a mark must be graphically represented and distinctive. However, Globally, the registration of scent marks faces substantial challenges due to the requirement that the scent be distinctive, non-functional, and capable of graphic representation. The difficulty of providing a precise and universally accepted graphical representation of a scent has hindered the widespread recognition of olfactory marks, despite advancements in sensory branding.

Cosmetics that imitate high-end items but are more reasonably priced are referred to as "dupes." Even though they are similar, dupes must be distinguished from "counterfeits" and "knockoffs." The registered trademarks of original brands are shamelessly imitated by counterfeits in an attempt to trick customers. On the other hand, knockoffs are subpar copies of the packaging or logo of a product. But dupes don't mean to fool people; they just provide less expensive substitutes by imitating the colour, texture, or recipe of luxury goods without necessarily stealing the packaging.

As dupes don't actually reproduce trademarked names, logos, or packaging, they operate in a legal grey area where their creations that imitate the formula of high-end scents are not classified as counterfeits. By using this tactic, they are able to hold a substantial portion of the market without facing legal consequences. Consequently, dupes are not covered by the Trade Marks Act, 1999 ("TMA"), India's legislative framework for handling counterfeits and knockoffs.

Also, according to the Trademarks Act, 1999, S.2(zb) in Indian law, a trademark is defined as "a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging, and combination of colours." Non-traditional trademarks like touch, sound, and scent are not specifically excluded under this description. The difficulty, though, is conveying a fragrance visually. According to Rule 28 of the Trademark Rules of 2017, a graphical representation is defined as something that "may be expressed in both paper and digital form."

And with smell marks, that’s practically impossible.

As a result, India still mostly ignores Olfactory trademarks even though India has a huge market for dupes that is unregulated

CHALLENGES

While the case for recognizing olfactory trademarks in India is strong, several challenges must be addressed:

1. Graphical Representation: The requirement for graphical representation remains the biggest challenge. Indian law currently lacks clarity on how non-visual marks, including scents, can be graphically represented. One possible solution is to adopt a more flexible approach, similar to the United States, where descriptions or chemical formulas may be accepted as a representation of the scent. The law could also allow for the use of scent samples during the application process.
2. Lack of Precedents: Indian courts have yet to address the issue of olfactory marks, meaning there is little judicial guidance on how such marks would be treated under existing law. Indian policymakers could look to international jurisprudence for guidance and consider how countries like the United States and the European Union are grappling with these issues.
3. Subjectivity in Scent Perception: The subjective nature of olfactory perception is another significant hurdle. To mitigate this, India could implement rigorous examination standards that require applicants to demonstrate distinctiveness and non-functionality through empirical testing or consumer surveys.
4. Public Awareness and Capacity Building: Introducing olfactory marks into India’s IP framework will require extensive awareness campaigns to educate both businesses and consumers about the benefits and challenges of scent trademarks. The Indian IP office will also need to build capacity in terms of resources and expertise to handle the complexities of scent-based trademark registrations.

CONCLUSION

Even though copying can be seen as flattering, it seriously jeopardises the uniqueness and exclusivity that luxury firms work hard to maintain. Dupes are essentially copies that mostly depend on the popularity of the original scents. Consequently, it is morally required of these brands to pay the original creators. The time is ripe for India to expand its intellectual property framework to include non-traditional trademarks such as olfactory marks. While challenges such as graphical representation, distinctiveness, and subjectivity exist, these are not insurmountable. By adopting a progressive and flexible approach, India can pave the way for businesses to protect their olfactory branding strategies, thus fostering innovation and aligning with global IP trends.

In conclusion, the inclusion of olfactory trademarks would be a forward-looking step that enhances India’s IP landscape, promotes innovation, and protects businesses and consumers alike. As businesses increasingly turn to sensory branding, it is imperative that India’s IP laws keep pace with this evolution.