Trade marks are used to distinguish goods and services from other traders and usually take the form of words or logos. But why stop there? Scents can also be used to distinguish goods and services from other providers and so although non-traditional, they can also act as a trade mark. This article details how to trade mark a scent.
How to describe and represent a scent trade mark
It is a bit difficult to capture the scent and lodge it with your trade mark application, and so the scent mark must be able to be represented graphically. This can often be as a description, such as “the scent of vanilla”.
It can be difficult to describe scents and to find the balance of representing a scent accurately and being clear enough to identify the scent. It needs to be represented in a way that the ordinary person would be able to identify the scent mark from the description. Your description will not only need to be an accurate description of the scent, but you will also need to provide details on how you intend to use the scent mark in relation to the goods or services.
You do not need to provide a sample of the scent when you file your application, but it may be necessary during the examination process.
How is the registrability of scents considered?
Just as with traditional trade marks of words and logos, if it is likely that other traders would want to use the scent mark in their ordinary course of business (without improper motive), then it is unlikely that the scent mark would be approved as a trade mark.
Here are four questions to ask when considering whether you should apply for a scent mark:
- Is the scent naturally associated with the product?
The idea of a trade mark is to distinguish the goods or services from other traders. If the scent is a natural attribute of the goods, then it does not necessarily distinguish that any particular brand from others. For example, the smell of rubber for car tyres would not be able to be trade marked, as it is a natural smell from the car tyres themselves.
- Does the scent have a functional purpose rather than a distinguishing purpose?
People often add scents to products with unpleasant odours in order to cover up the smell. These are called “masking scents” and are unlikely to be trademarked as they have a functional purpose and are not being used to distinguish the goods. An example of a masking scent would be a lemon scent added to bleach or cleaning product.
- Is it a scent that is commonly associated with the particular trade?
Again, keeping in mind that the trade marks are supposed to distinguish a trader’s goods from others, if a particular scent is commonly associated with a type of goods, consumers are not likely to notice the difference.
- Is the scent capable of distinguishing the goods?
Following the first three questions, the scent needs to be more than a scent natural to the goods, and must be serving more than a functional purpose. Consumers should not expect the goods to smell that way, but it should be an additional scent that helps to distinguish the supplier of the goods.
If you want to trade mark a scent, get in touch with LegalVision on 1300 544 755. Our team of IP lawyers are more than happy to help you during the registration process. Get in touch today for your fixed-fee quote and free consultation.
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