Trademark law has two fold objectives; firstly the trade, business and goodwill of the said mark which comes hand in hand with its trademark and secondly to protect the public from deceiving and malafide intentions which causes confusion amongst the general public. Trademark is usually known for their uniqueness of the word and the logo. It is a sign of quality. The more unique and popular the trademark is, it is more likely to attract the customers. Trademarks are popularly known for distinguishing the brand from one another and also for its uniqueness. Trademarks are very well famous amongst the people and now it has become a familiar concept also in India.
Now, in general parlance the territory of trademarks according to general public is, word, phrase, symbol or particular design by which that identifies or distinguishes the source of the goods and services.
However, the territory of the trademarks does not stop here. It also includes non-conventional marks. Such as smell mark, sound mark, taste mark etc. now-a-days sound marks has become famous as its best example is the nokia jingle which worldwide famous. Only by hearing that particular jingle you can clearly state that this particular product belongs to nokia. Similarly there is another non-conventional mark which is smell mark. In general parlance the smell mark is a rare breed which includes the debate i.e. “should it be included in trademarks or not?” but as trademark is defined under the Trademarks Act, the trademark should be able to present graphically and also it should distinguish the goods and services from one person to another.
It is clearly stated in Rule 26 of Trademarks Rules, 2017; the mark should be represented graphically for registration. Therefore it creates hindrance to olfactory mark to be registered under Trademarks Act, 1999 in India. Now the unconventional marks are immerging in the market and smell mark is one of them. It is always said in many behavioral studies that smell triggers more vivid and emotional memories than any image. Smell always brings out the closeness with that particular memory. It shows that the smell of a particular thing can be engraved in human mind. With the help of that smell imprints a person can clearly distinguish between the goods from one another. Therefore it fulfills the basic requirement of the trademark rules, that the mark should be able to distinguish the goods from one another.
CONCLUSION:
The smell of any particular thing can imprint its uniqueness on the human mind. This makes it easy to differentiate it from any other goods. Human mind can identify the smell of a particular product and can distinguish it from other goods. As it can be distinguishable, it serves the requirement of the rules. Therefore unconventional marks i.e. smell mark may be recognized and registered under the Trademarks Act in India.
BY
SHRUTI TOPKAR
B.A.L.L.B
JUNIOR ASSOCIATE