Sample Solution

fferentiate the goods of one merchant from those of the other. Smell marks are one of the most difficult kind of marks to get registered. However, smell being so subjective, may be perceived differently by different people. The subjectivity of smell acts as a hindrance in its distinctiveness. Another issue is the difficulty in graphically representing smells. One way to represent a smell could be to orally describe it so precisely that it doesn’t get confused with any other smell, but this is quite an arduous task. Writing the chemical formula for the substance is problematic as the formula represents the substance and not the smell itself. Samples of the smell could be stored but these may either vanish over time or change their nature when exposed to certain external factors like heat and humidity. Another important thing to note is that the scent must neither originate from the goods itself nor be functional. Functionality Doctrine again plays a role here and if any smell has a functional use, the registration of which could lead to significant disadvantage to competitors, such smell may be disbarred from registration. However, there is no clear-cut definition for functionality. For example, the smell of lemon for garbage plastic bags; the smell itself can be distinctive, but it can also be functional because it can mask the smell of waste and garbage. Fashion house Chanel’s application to get its iconic perfume Chanel No. 5 trademarked was rejected as it was the essence of the product. The first scent mark to be granted in the US was for a “high impact, fresh, floral fragrance reminiscent of Plumeria blossoms” for “sewing thread and embroidery yarn.” There were four reasons for trade mark to be granted – (1) no one else in the market was producing scented threads and yarns; (2) the scent was an added feature and was neither functional nor inherent to the goods; (3) the scented feature was advertised and promoted; and (4) consumers had come to associate the goods with the manufacturer. Some other smell marks are Sumitomo Rubber Industries Ltd.’s rose-scented tyres and Vennootschap onder Firma Senta Aromatic Marketing’s “smell of fresh cut grass” for tennis balls which has now lapsed. India is yet to set precedence as far as smell marks are concerned.