By 
By: Radhika Singh
From the time we wake up till we go back to bed, our life is governed by brands, ranging from the clothes, footwear and perfume/cologne we wear; the soap, shampoo, toothbrush and toothpaste we use; the eggs, bread, butter and other food we eat; to the fridge, car, office furniture, bed and mattress we sleep on are all brands of different companies.
We don’t realize but when we hear or see the brand, we directly associate it with the owner of the product and the quality or reputation we associate with those products and also helping us distinguish those products from products of other companies. Therefore, it works as a source identifier and offers quality assurance.
What is even more interesting is that we think trademarks are traditional and conventional in nature such as the name, sign, logo, tagline of a brand etc. but it’s much more. These are all conventional trademarks which we are well aware of, but have you really thought of how unconventional a trademark can be?
Did you know that there are several types of unconventional trademarks such as Colour marks, Shapes mark, Sound mark, Olfactory and motion marks which are also being used for the same purpose as any other trademark i.e., to help consumers associate the products or services in respect of which the unconventional trademark is being used with the brand owner? Like all trademarks the requirement for registrability of
unconventional trademarks are the same i.e., the trademark should be capable of being represented graphically and distinguishing the products of the owner from others of others selling the same products/services.
The difficulties with unconventional trademarks such as Sound and Smell are that it is difficult to graphically represent them. A sound mark can include sung or spoken words, musical notation or a combination of both. When it comes to graphical representations in some jurisdiction’s sounds can be represented graphically such as musical notations on a stave, verbal description of the sounds, recordings of the sound mark on CDs, DVs, MP3 recordings.
In India, the first sound mark to be granted registration by the Indian Trademark Registry was the Yahoo! Yoddle and the first Indian entity to obtain registration for a sound mark is ICICI Bank Ltd. for its jingle by registering the very notes that form the jingle.
Examples of some sound marks that have been granted registration around the world are TIME WARNER ENTERTAINMENT – Looney Tunes Theme Song and MGM – Entertainment – Roaring Lion.
The story becomes even more arduous with Smell marks. Smell marks also have to meet the test of being graphically represented and being distinctive. The biggest hurdle is ascertaining how to graphically represent the smell mark. A smell mark cannot be expressed through lines, contours, diagrams, however, an effort could be made to represent smell marks by verbally describing the smell.
The problem with verbal description is that it is difficult to distinguish one smell or scent from another. Another commonly used form of graphical
representation of a scent is describing the smell as a chemical formula. The issues with chemical formulas are that it is difficult to get a sense of the smell based on its chemical formula. Further, a sample of the scent provided as evidence of the scent in question may degenerate over a period of time as the chemical composition may deteriorate.
Therefore, the best way to represent a smell mark currently is to describe the smell in writing. Some examples of smell marks that have been registered are a Dutch company’s tennis balls with the scent of freshly cut grass; and UK registrations for tires with “a floral fragrance/smell reminiscent of roses” and darts with “the strong smell of bitter beer”.
In the US- Bubble Gum scent has been registered for Sandals and the smell of Strawberry for Toothbrushes. So next time you hear a unique sound and find a product with an interesting smell you could inform them that they may have a chance of registering a sound or a smell mark!
Radhika Singh is one of India’s best intellectual property lawyers. She is based in Bangalore, India.
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