e., the ability to read music) or color marks (access to and familiarity with the Pantone chart)." (Matheson, 2003)
There is a question regarding 'scent depletion' as noted in the work of Matheson who states: "The overall number of scents of a favorable character which are intelligible to the majority of the public through a straightforward written description and suitable for product identification are, presumably, rather limited. According to this theory, the registration and/or protection of specific scents should be prohibited to avoid depletion of the supply of scents available for use by others." (2003) This same argument is one that has been reviewed and recently dismissed by the Supreme Court "...relative to color marks as relying upon an occasional problem to justify a blanket prohibition." (Matheson, 2003)
Matheson believes that this concerns will hold more sway in the context of olfactory marks because "...Pending the adoption of a widely accepted method for the graphic representation of scent, it may be the case that the number of scents available to potential trademark owners is quite restricted. The domain name quandary has aptly demonstrated the problems generated for trademark owners where insufficient options are available to "go around." At first glance, in the scent context, it seems that the functionality doctrine should offer a method to retrieve for wider use those fragrances that have evolved over time into product features necessary for competition." (2003)
Sensory evaluation is according to Matheson "highly subjective" since the "perceptions of scent may vary widely according to the concentration, purity, quantity, age and temperature of the olfactant and the sensitivity, sophistication, skill and health of the receptor" or the customer. This subjectivity according to Matheson "explains the growing success of personalized aromatherapy. It answers how some people identify scents of vanilla, anise, apple, cranberry, oak, and pepper in a single sniff of wine and others perceive just... wine. Arguably the issue of subjectivity should present no greater quandary for olfactory marks than do trademarks generally. The legal standards used to evaluate the similarity of words or colors are no less applicable to determinations based upon gradations of scent. Only experience (and case precedent) is lacking." (Matheson, 2003)
There is also a problem noted by Matheson in relation to functionality in applying trademarks to scents and specifically since scents "...which are neither an "inherent attribute" nor a "natural characteristic" of a product and serve no utilitarian function other than as a source identifier are protectable as trademarks. While determinations of functionality may appear straightforward in evaluating products like perfume, home fragrance products, and household cleaners, these lines of demarcation are quick to blur." (2003) Matheson questions the application of fragrances to items such as paper towels and toilet papers and asks whether these fragrances would fall in terms of trademarks. Also, would this increase prices quite liberally?
The work of Carsten Schaal (2003) entitled: "The Registration of Smell Trademarks in Europe: Another EU Harmonization Challenge" states that the "first step to harmonization of the EU Marketing concerning trade marks was laid down on December 21st, 1998 with the First Council Directive 89/104/EEC to approximate the laws of the Member States relating to trade marks. Another step was the Community Trade Marks Regulation (CTMR) EC/40/94 of December 20th 1993, which declared under its Art. 2 the establishment of the 'Office for Harmonisation in the Internal Market' (OHIM) for trade marks and designs. Accordingly, the Member States implemented the Directive 89/104 EEC into their national laws, e.g. The United Kingdom (UK) in the Trade Marks Act 1994 and Germany in the 'Markengesetz' (MarkenG) of 1995." (Schaal, 2003) the Directive, the Regulation and the amended State Laws, took into consideration "...took into consideration the new trade mark forms such as sounds, signs and smells..." however, there is a major problem which "...endures" and that is "...the requirement of 'graphical representation' of the mark, which can be found in each one of those statutes." (Schaal, 2003)
Schaal examines the requirement of graphical representation and states that...
Schaal (2003) states that the requirement of a 'graphical representation' of a trademark in order that it be registered was "...first mentioned in Art. 2 of the 89/104/EEC Directive, which reads as follows: "A trade mark consists of any sign capable of being represented graphically, particularly words, including personal names, designs, letters, numerals, the shape of goods or of their packaging, provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings." (Schaal, 2003) Schaal states that there are practical reasons for the requirement that the trademark be recorded only "by means of a piece of paper that is visible and can be read by everybody.
The Third Board of Appeal is stated by Schaal (2003) to have summarized "in the Orange case that the graphical representation was "an imperative necessity for conducting the examination and registration procedure, including the search, and is commanded by the interests of the public and all owners of registered rights such as, for example, the owners of earlier trade mark rights who wish to determine the scope of protection of the application, and, finally, with regard to possible opposition proceedings," (Schaal, 2003)
Schaal (2003) also relates that another reason for this requirement of a graphical representation as well as for the need for a depiction on paper "...is the facilitation of the Register Office's administration." Schaal (2003) states that such an institution "....like that with many thousands (2003)
V. SUCCESSFUL OLFACTORY TRADE MARK REGISTRATIONS in the EU
Schaal (2003) relates that applications on olfactory trademarks in European register offices including "...the UK Register Office, the Uniform Benelux Register Office, the German Patent- und Markenamt or the OHIM" have resulted in only a few successful olfactory trademarks thus far. Stated as the first remarkable case was that of Chanel, a well-known manufacturer of perfume in which the company seeking to register "...the fragrance of 'Chanel No 5' as an olfactory trade mark in 1994. scent of aldehydic-floral fragrance product, with an aldehydic top note from aldehydes, bergamont, lemon and neroli; an elegant floral middle note, from jasmine, rose, lily of the valley, orris and ylang-ylang; and a sensual feminine note from sandal, cedar, vanilla, amber, civet and musk. The scent is also being known by the written brand name No 5." The Chanel application failed because of the above said second requirement that the shape of the product shall not result from the nature of the good itself. However, the smell of a perfume is the good itself and can therefore never be successfully registered as an olfactory trade mark." (Schaal, 2003) This, states Schaal (2003) "is the current state of the laws..."
Two successes in registering olfactory trademarks in the EU were those of: (1) Sumitomo Rubber Co.; and (2) Unicorn products. Sumitomo Rubber Co. applied to register a "floral fragrance/smell reminiscent of roses as applied to tyres." (Schaal, 2003) This was a successful registration and was the first olfactory trade mark registration in the UK registered under number GB2001416. The second also registered the same day was that of Unicorn Products seeking to register "a mark in class 28 in respect of the 'strong smell of bitter beer applied to flights for darts. This olfactory trademark was recorded by the UK Register Office under number GB2000234." (Schaal, 2003)
VI. NON-TRADITIONAL TRADEMARKS
The work of Neetri Suri (2008) entitled: "Single Colour Mark: It's Registrability in the United States and the United Kingdom" states that the non-traditional trademark, also known as a non-conventional trademark "is any type of trademark which does not belong to a pre-existing conventional category of trademarks, and which is often difficult to register, but which may nevertheless fulfill the essential trademark function of uniquely identifying the commercial origin or products or services." Suri writes that the concept of non-traditional trademarks is "an innovative concept as it introduces an entirely new family of marks discrete and distinct from the traditional trademarks." (2008) trademark is normally comprised of a "device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or any combination thereof and a general perception about it is that is static, two-dimensional word, design or logo used to identify a product or service. But this family of non-traditional trademarks on the contrary comprises of a number of different types of trade marks which do not belong to the conventional category, of words, numerals, pictorial and logo marks, or any combination of these marks, and yet serve the essential purpose of a trade mark by identifying the products or services as being from a particular undertaking. Non-conventional trademarks may therefore be visible signs (eg. colours, shapes, moving images, holograms), or non-visible signs (eg. sounds, scents, tastes)." (Suri, 2008) Suri (2008) states that as such "...non-traditional trademarks comprise of marks based upon sound, texture, three-dimensional shape, taste and smell…
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