Olfactory Marks: An overview.

INTRODUCTION 

Smell refers to the ability to detect the odour or aroma of anything through inputs that influence the olfactory nerves. Smell is thought to be one of the most powerful types of human memory, capable of conjuring up images and initiate memories in the mind.

Businesses are increasingly interested in associating pleasant fragrances with their products, and a scent may cause a consumer to link a certain product with a single commercial source in certain conditions.

As a result, fragrances can be used as source identifiers, which is an important requirement for trademarks. Smell marks are non-conventional trademarks, which means they don't fit into any of the pre-existing, traditional categories of trade marks. This is a difficult category to define. but which may nevertheless fulfil the essential trademark function of uniquely identifying the commercial origin of products or services.

Smell marks also known as scent trademarks or olfactory trademarks sometimes find its specific mention in legislative definitions of "trademark", however, it is often difficult to register such marks if consistent, non-arbitrary and meaningful graphic representations of the marks cannot be produced. 

To obtain registration of a smell mark. applicants Must be able to visually represent the product's scent and must show it to be distinctive from the product itself.
 

For instance, a bottled sample of the smell would decay over time and therefore cannot be kept on a trademark register. Writing down the chemical formula for a smell is problematic, as it is deemed to represent the substance rather than the smell of that substance.

Any written description of a smell must be so precise, so that the particular smell is not confused with any other. Another obstacle to smell mark registration is that the smell must not result from the nature of the good itself. Hence, the major difficulty lies in capturing the point at which a scent functions as a trademark

Advantages Of Scent Mark Registration

1. Increase Sales

Scent can trigger instant emotional connections with customers, thus being very effective in boosting sales. Exxon On The Run convenience stores highlighted a new brewing system with coffee scents and saw a 55% increase in coffee sales.

2. Heighten Value Perception

Customers tend to perceive a scented space as being of better quality. Study participants were willing to pay 10-15% more for a pair of Nike shoes in a scented room as compared to identical shoes in a unscented room.

3. Expand Brand Recognition

Scent helps create memorable experiences and associations in people's minds. Research shows at least 63% of consumers have chosen one store/brand over another due to a stores pleasant scent.

4. Enhance Customer Experience

Research indicates a 40% improvement in mood when exposed to a pleasant scent, resulting in happier customers.

5. Create a Welcoming First Impression

Scent sets a lasting first impression that connects emotionally on deeper levels with your customers from the second they walk through your door. In fact, 82% of consumers spend more time in a place that was pleasantly scented.

6. Increase Linger Time

The right scent can encourage customers to interact with your product longer. In a study conducted by Samsung, shoppers underestimated the amount of time they spent shopping by 26% and visited 3x more sections when exposed to aromas.

7. Enhance Interior Aesthetics

whether your space is new or in need of a facelift, scent is an economical way to create or enhance a modern ambiance, giving your business an updated look and feel.

8. Create Memorable Experiences

Scent can evoke a warm feeling of familiarity and trigger memories. People are 100x more likely to remember what they smell vs what they see, hear or touch.

9. Influence Mood

Pleasant scents can help your customers feel relaxed, happy and ready to do business. A fragrance expert can help you identify the perfect scent match for your business.

10. Combat Malodours

If your business struggles with malodours or produces an off-putting smell, using an odour neutralizing fragrance can help to greatly reduce, neutralize, or eliminate malodours.

Disadvantages:

While scent marks appear to be an innovative way to distinguish goods and services, there is a strong case against the ability of scents to function as reliable indications of trade source.

Scientific research on the human sense of smell indicates the highly subjective nature of odour perception undermines the ability of scents to act as objective and reliable indications of source. This not only prevents scents from functioning as trade-marks, but also subverts reliable judicial administration.

Universal preferences for certain scents will also deplete the limited number of desirable scents available for scent marks, resulting in scent mark depletion.

 

We can criticize the smell marks by two ways.

Scents are too subjective to function as trademarks

A trade-mark's function is to act as an indicator of source for goods and services. Thus, the function of a trade-mark is objective either the mark functions as an indication of a particular source or it does not.

Unfortunately for scent marks and the legal systems they populate, the human sense of smell is not objective but instead very subjective. Some individuals have a keener sense of smell than others.

Universal scent preferences will result in scent mark depletion
Depletion theory is a doctrine that has been applied in American trade-mark law to colour trademarks. This theory operates on the principle there are a limited number of sensory devices (i.e. colour, scent or sound marks) that will be favourably perceived by consumers.

Granting a trademark monopoly over one of the few desirable marks available depletes the remaining pool of desirable marks and thus adversely affects competition.

Conclusion:

Taste marks may be easier to represent graphically  the SCT reports that the graphic representation requirement was satisfied by using a written description of the taste and an indication that it concerns a taste mark  but the hurdle of distinctiveness is even harder to overcome as are assertions concerning functionally.

Scent marks appear to be an innovative and catchy way for traders to market their goods and services. However, an equally strong cae made that scent marks pose a significant dilemma for trade-mark law. The difficulties in representing scent marks in trade-mark registries, the inability of scent marks to function as stand-alone identifiers of trade source, the subjective nature of scent perception, and scent depletion theory ultimately combine to undermine the utility of scent as trademark. 

It is often difficult for traders to represent such marks in the trademark registries, it lacks the basis to perform as the sole identifier of the source or origin, the theory of smell depletion and also the fact that smell or scent is subjective in nature and it changes and depends from person to person and so different consumer may perceive it in a completely different way based on their opinion. All these together works in a negative way sometimes and challenge the functionality and efficacy of smell marks as trademarks.

The comparative analysis of trade-mark regimes at the beginning of this paper highlights that the future of scent marks is uncertain. No international treaty mandates the registration of scent marks. In fact, some treaties, such as Trademark Law Treaty, explicitly state the terms of the treaty do not apply to scent marks. Regarding national laws, some jurisdictions are more tolerant of scent marks than others.

Written by:

Priyanshu Jain