It is the inherent purpose of law to serve as an instrument for the betterment of humanity. But in a quest for majoritarian or popular law, sometimes we tend to overlook an important section of people who need protection of our laws the most, namely the disabled. The law relating to trademarks is a similarly unexplored area of law where disability rights are yet to leave their mark. Cutting to the chase, here’s my argument regarding as to how a non-conventional trademark of smell guarantees not just rights to the non-disabled, but a segment of the disabled population as well, that is to those who cannot see, hear or both. But first, for the uninitiated, let me start by explaining to you what trademarks actually mean.

What is smell trademarks ?

If you go through the WIPO (World Intellectual Property Organization) website, you would find a small definition of trademark which states:

A trademark is a distinctive sign which identifies certain goods or services as those produced or provided by a specific person or enterprise. Thus from the definition, it is clear that a sign as an indicator of the required good or service must be distinctive so as to identify it as belonging to a specific person or enterprise. While generally, these signs are in the form of letters or symbols arranged in a specific pattern, a trademark can also be a non-conventional one in the quite, ‘non-visual’ sense that it could also include a shape, sound or smell as well. Sounds fascinating? It is.

Now, these kinds of trademarks are collectively known as non-conventional or non-traditional trademarks. Out of these non-conventional trademarks, my focus on this article is regarding olfactory trademarks (smelling trademarks), where the smell associated with a particular product acts as its trademark. Let me illustrate this with a simple example of an interesting case regarding the use of the smell of freshly cut grass as a trademark for tennis balls by Vennootschap onder Firma Senta Aromatic Marketing of Holland . If you are a tennis enthusiast or even a general reader, you might have come across this case.

Treading the ‘Grassy’ Way:

In 1999, a remarkable proposition arrived before the Community Trademark Office in the jurisdiction of the European Union whereupon it had to debate and decide on whether it could allow registration of the smell of freshly cut grass to serve as a trademark for a brand of tennis balls. It lost its initial battle as the application was refused on the grounds of not constituting a graphical representation as was mandatory under Article 4 of the Community Trade Mark Regulation in the EU legislation. It was finally on appeal that the smell of freshly cut grass was approved by the Board as a legitimate trademark since it was both widely recognized and appropriate to be used for identifying tennis balls.

The tennis company’s use of grass for trademark purposes further highlights the fact that smell indeed can serve as a reliable source of identification. There have been other similar instances where this fact was recognized by the Court, such as in 1996 for UK’s first smelling trademarks to Japan’s Sumitomo Rubber Co. for “a floral fragrance or smell reminiscent of roses as applied to tyres” and in the UK, the odour of beer for dart flights by Unicorn Products, a London based maker of sports equipment. Thus, as can be easily made out, the choice of the trademark is such that the product, say tyres, would have no nexus with its smelling trademarks, i.e. roses. By now, you are probably wondering what all this has to do with those who are less-abled. Hold that thought, because I am about to get there in the next few lines.

Please your Olfactory Senses:

There are already so many different kinds of trademarks to please some of our senses of sight, smell, touch, sound. Then why am I putting so much importance to smell? If you think about it, you will realize that unless you have a really bad cold which lasts only temporarily, you cannot do away with your nose, and consequently, your sense of smell. So, the sense of smell is one common feature to all human beings. As long as we are alive, we are breathing, aren’t we?

It is pertinent to note that psychologists, in fact, have concluded that our sense of smell is the strongest in our body, far surpassing sight or sound. Well, thank God, or imagine how many gas leaks or short circuits would have gone undetected, leading to a higher risk of death for us! The point I am trying to make here is that our sense of smell is a reliable feature that all of us, human beings, whether disabled or able-bodied possess, especially those individuals who cannot see or hear a particular trademark.

As smell has the strongest pull in our memory. So even those of us, who tend to forget to pick up their wife’s particular brand of a certain product from the grocery, can easily recognize the trademark smell of a good and not have to spend a huge chunk of petrol reserves to get back to the store, and also, avoid dealing with all the screams! Besides, let’s accept it, we are all in the path of becoming a consumerist oriented society, and as trademarks are an indispensable part of this journey, we might as well ensure that they are strong enough to last in our memory and otherwise.

Back to the technical details:

As we all know, the effectiveness of a trademark depends on its ability to convey and evoke a specific set of information regarding the desired material with minimum space, time and effort. And what can be more minimalistic than a whiff of the trademark? Of course, an olfactory sign comes with the caveat of ensuring that it does not represent a smell inherently characteristic to the actual product. This is because a particular good may have several manufacturers and it would be unfair if one company obtained the monopoly of taking over the smell of that good. In a simpler example, suppose I am a manufacturer of a certain paint company. Then I cannot use the smell of paint as my smelling trademarks, since it does not distinguish my product from that of my competitors because paint manufactured by any company will smell of paint only! It is as simple as not using the word ‘Paint’ to name my product, so that I can distinguish it in the market as belonging to my company.

A Hypothetical ‘Scenario’:

Now, let us assume that I am visually challenged. Also, I am quite particular about buying a certain brand of sauce which does not contain peanuts, so I go to the store and demand for it. Taking advantage of my vulnerable situation, the store salesman offers me a brand of sauce which has similar shape of a bottle but contains peanuts because it much cheaper for him to sell. Since I cannot see the trademark, I get duped and buy it, only to suffer from severe allergies upon usage. Of course, I have the liberty to sue the perpetrator of my discomfiture and with the help of a good lawyer, I might win the case after an inordinate amount of time. But suppose if there was a way of ensuring that I, as a visually challenged person could buy the product of my choosing without attracting such unfavourable situations, wouldn’t it save us all a great deal of trouble?

Now, in a different scenario, I, as a disabled person, go to the store, pick up the product I want, smell it and after being certain of the quality, buy it, everyone is happy and with the least amount of effort (except maybe the salesman who would have preferred a quick buck!).
There…I said it!

Of course, it is not practically feasible to only use smelling trademarks. Nor can all the pre-existing trademarks which users identify so well with, be changed. But keeping in mind the prospective needs of a disabled person, we can vouch for certain categories of items that an incapacitated person might require and can confidently purchase to be included as olfactory trademarks(smelling trademarks). For instance, a person who cannot see or hear would like to be assured of the quality of commonly used medicines, such as Band aids or Disprin, or sanitary products, as well as goods which may contain ingredients that someone might be allergic to, like in certain kinds of food products. As trademarks are increasingly needed to receive quality assurance from trusted brands, it has become even more prudent to ensure that necessitous or daily supply goods are registered under the category of smelling trademarks.

Too many Strawberries:

In a case involving the use of strawberries as identification scents for face creams, soaps, leather, clothes, etc., the European Court observed that the trademark had not been graphically represented.

The judgment also identified another lacuna which significantly changed the course of this case. It gave the analysis that the description of ‘smell of ripe strawberries’ could refer to a variety of strawberries and therefore to several distinct smells. I wonder if anyone else found this fact regarding precision worth comparing to the case where “floral fragrance or smell ‘reminiscent’ of roses” was allowed to be registered as the official trademark of the tyre company of Sumitomo Rubber Co., now transferred to Dunlop Tyres. Maybe if Eden Sarl had not lost its bid for this particular kind of trademark protection, a person who is unable to visually identify a trademark, could just smell the scent of strawberries and immediately connect it to its commercial origin.

Smelling trademarks, the last whiff:

The battle for including olfactory signs for both commercial purposes, and importantly, for use by the disabled is a new concept which the world is yet to give a serious thought to. Nevertheless, if one day, smelling trademarks could be viewed from the human rights perspective and used by the blind or the deaf (who cannot hear the sound trademarks) to identify their required goods, it would be a giant leap for humanity. Till then, I would hope that we don’t turn up our noses but allow the scent in the air to reach our humane senses. Once this step is complete, rest assured, it will have a permanent mark, because, haven’t you heard, scent has the strongest effect on our memory!

This article has been authored by Ishani Dash who is pursuing law at W.B. National University of Juridical Sciences.

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Raja Selvam

Founder & Managing Attorney, Selvam & Selvam | Practice areas include Trademarks, Patents, Domain names & Business law. Visiting faculty, Department of Journalism, Madras University where I teach copyrights & trademarks law. Passionate about entrepreneurship, start-ups, stocks, farming, technology and law.