Smell, Sound And Taste Non-Traditional Marks

If you heard a familiar, comforting sound associated with a particular kind of tea, would you be more likely to choose it? How about the smell of freshly cut grass emanating from tennis balls - would they make you a winner? Or mint-flavored tennis balls for your dog - would fresher breath not be welcome? Marketing specialists would like us to think so, and these are only some of the subtle ways manufacturers get us to recognize their products. But just how far can trademark registration be stretched to protect these innovative ideas?

Smell is said to be one of the most potent types of human memory, and businesses show increasing interest in pairing pleasant scents with their products. To obtain registration of a smell mark applicants must be able to visually represent the product's scent and must show it is distinctive from the product itself. A bottled sample of the smell for example would decay over time and could therefore not be kept on a trademark register. But how does one represent a smell in a visual way? 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 that that particular smell would not be confused with any other.

An additional obstacle to smell mark registration is that the smell must not result from the nature of the good itself. For example, an application by Chanel to register its well-known No. 5 fragrance as a smell mark in the United Kingdom was unsuccessful on that count - the scent of the perfume being the very essence of the product. However, some smell mark descriptions have met the distinctiveness test and been successfully registered, such as: a Dutch company's tennis balls with the scent of newly mown grass; and UK registrations for tires with "a floral fragrance/smell reminiscent of roses" and darts with "the strong smell of bitter beer." The Office for Harmonization in the Internal Market (OHIM), however, does not agree with the granting of the two UK registrations.

Representation of sound marks

In the case of sound marks, alternative methods have emerged for their visual representation: depictions by oscillogram, spectrum, spectrogram and sonogram are now being accepted. Such representations must be handled carefully in order to meet the requirements of individual...