October 31, 2005
Sniffs and Roars Are Hard to Trademark
The European Union's recent refusal to permit a French company to trademark the smell of fresh strawberries on the grounds stated "there is no generally accepted international classification of smells which would make it possible ... to identify an olfactory sign" is a reminder that non-traditional trademarks are still a thorny issue worldwide.
Marketers always must consider alternative advertising methods in an effort to quickly and effectively differentiate their brands from the competition's. I have always felt that smell is a very powerful mean of establishing an emotional connection to a product. Psychologists confirm "scents offer the strongest effects on memory, surpassing sight or sound." Yet trademarking a specific scent is very difficult. Scents are subjective. Could ten random people take a blind sniff test and unanimously identify a certain smell as that of "fresh" strawberries? I doubt it.
The US Patent and Trademark Office requires that a scent be "commonly known," "immediately intelligible to the majority of the public," and can only function as a source identifier "where it has no utilitarian function."
Smell is not the only difficult attribute of a brand to trademark. Other non-traditional trademarks include sounds, motions, tactile marks (one German brewery trademarked its name in Braille) and even holograms. Recently American legend Harley-Davidson abandoned a six-year quest to trademark the throaty roar of its motorcycles. It's not such a crazy idea. Other examples of sound marks include a duck quacking "Aflac" for American Family Life Assurance Company of Columbus, a cat's meow for Twentieth Century Fox Film Corporation, and the chimed notes G, E, C for NBC. Nonetheless, only 58 out of 729,000 active trademarks in the United States are sound marks.
Laws around the world vary but as things stand, the law in Europe is very clear: a trademark must be able to be represented graphically and be "precise, self-contained, easily accessible, intelligible, durable and objective". I think for the time being, smells as well as sounds, will remain hard to protect.
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