On a beautiful Sunday morning you are jogging down the street. After covering few kilometers, you decide to break for a breather. As you rest your legs, you hear the distant sound of a TV commercial from a house nearby. The sound isn’t clear and you are not able to figure out what the people might be watching, until you hear the sound “Ting, ting di ting” and then you think “Ah! That’s Britannia Goodday biscuits” and simultaneously you smell hot Sambar (a south Indian dish) and say to yourself “And that must be Ratna Café’s Sambar”. After both the thought waves, there is a realization that you are hungry after a long jog and you would not mind some Idli-Sambar or hot coffee with Goodday biscuits”.

It is very peculiar that we identify something by its sound or smell. For example, Microsoft Window’s opening theme , Nokia’s tune, Intel’s tune, McDonald’s “I’m Loving it tune” tagline, Airtel’s famous jingle, smell of Hyderabadi Biryani, smell of Axe perfume, smell of bitter beer etc., surely do ring a bell. These sounds and smells are well-known and belong to well-established companies and hence are easily identifiable by almost everyone. So do businesses protect their “special sounds or smells”? Yes, they do because they would like to actively guard against a local coffee shop using Mc Donald’s jingle and selling Potato Pakodas that smell like McAloo tikki burgers. In essence, they would like to ensure that their products are unique.

What is a mark?

To understand this better let us take a look at trademarks. In India, the law of trademarks is goverened by the Trademarks Act, 1999 (“the 1999 Act”) and its Rules which exclusively protect a person’s mark. A mark can be the signature, identity, symbol, depiction or name that uniquely identifies your company, business, or even just a road side shop. There aredifferent kinds of marks, such as smell mark, name mark, word mark, logo, 3D mark sound mark, etc.

Why are olfactory marks or even sound marks protected?

Imagine a situation where the engine of a Bajaj Pulsar Bike sounds like that of the engine of a Harley Davidson Bike. Or a situation where whiskey  smells like Bitter beer. It would definitely deceive any person who is able to knows these smells or sounds well. Hence a smell or sound that identifies a famous product needs to be protected to defend the product’s uniqueness.

There is a first time for everything!

Now let us go into the history and geography of smell and sound marks. The first smell mark was registered in the United Kingdom by Sumitomo Rubber for “a floral fragrance or smell reminiscent of roses as applied to vehicle tires”.  I am not aware of any smell marks applied for or registered in India and I ask you readers to let me know of any smell marks in India that you might be aware of  Some famous smell or olfactory marks include ‘strong smell of bitter beer’, ‘‘’smell, aroma or essence of cinnamon’ for furniture and parts’’ and fittings, ‘smell of fresh cut grass’ for tennis balls, etc.

In terms of sound, the first sound mark was registered in USA for the chime of NBC entertainment and in India it was the famous Yodel of Yahoo. Some of the famous sound marks that have been registered are that of Nokia’s tune, Intel’s five – tone sound, Time warner – Looney Tunes theme, Pillsburry – Dough boy’s giggle, American Airlines – “Ding” for flight attendant, Twentieth Century Fox – Starting Drum Roll, etc.

How are these smell and sound marks protected in India?

The 1999 Act states that a mark should be graphically represented and it should be distinguishable from any other mark i.e. the distinctiveness of the mark has to be proved in order to be even called as a mark. If we give this statement a thought, we realize that a peculiar sound or a smell does indeed give the mark distinctiveness from other marks or goods or services. Hence this aspect of distinctiveness can very well be protected under the 1999 act.

“If distinctiveness needs to be proved, then prove it” is the mantra that is to be kept in mind by brand owners who have increasingly sought to register sounds and smells as trademarks. The foremost challenge is to prove that the particular sound or scent is totally unique, distinct and is closely associated with the brand and that the sound or smell triggers a person experiencing it to think of a particular brand only. Another challenge is to register the mark. A brand owner, in order to obtain registration, needs to get a trademark issued for use of a specific smell or sound in relation to a particular product, protected under a discrete trademark class, rather than just randomly attempting to register the smell or the sound.

In India, smell or scent is not directly referred to in the definitions of mark or trademark under the 1999 Act. However, the definitions do not exclude the possibility of covering smells or scents. However, to seek registration under the 1999 Act, the smell or scent should be described in writing i.e., represented graphically. For example, the smell of strawberries emanating from strawberries-scented washing powder can be described as, “scent of strawberries from clothes after every wash.”

Like smells or scents, sounds should also be represented graphically if they are to be registered under the 1999 Act. For a sound mark, a musical notation is acceptable as graphical description. If the sound has been produced by a musical instrument, it would be logical to mention that point, because trademark registration demands graphical representation of the mark and mention of the musical instrument can be counted as a graphical representation. Therefore during registration, the point that states about how the music was created and what notes have been used, would help in defining its uniqueness.

The future of smell and sound recordings

Our Indian trademark system has gathered a lot from the experiences from the European Union and the USA trademark regimes. In times where sometimes straightforward word marks or labels or logos do not get registered, smells or  sounds have been registered as trademarks. Despite the greater hurdle of registering smell marks and sound marks, we can hope that in future, there is a simpler, cost-effective solution, for it would be great if there is  an amendment of the law  that would help utilize a  new form of  technology by which sound or smell marks would be registered without the requirement of penning down the description of the mark. For example, an easier requirement of graphical representation could be recording and storing sound marks in mp3 or mp4 or other audio file formats.  In case of a smell, a device that can be used to record the smell of an article on a permanent basis For example, the much talked about Madeleine smell camera!

On a conclusive note, I feel that the rise of sound marks and smell marks can and will lead to a new breakthrough in the Intellectual Property world, with the people being able to protect the uniqueness of their goods or services and do not have to worry or squabble over blaming the person for copying their trademark.

This post was authored by Keshava H. B., a fifth year law student from University of Petroleum and Energy Studies, Dehradun who wants to specialize in intellectual property laws.