SOUND, SMELL, TASTE – LET THE SENSES TAKE OVER
The competition in the business sectors is consistently expanding. Along with the competition, the base and awareness of consumers is also on a rise. In order to outperform the rival companies, brands are always on a look out to embrace exceptional strategies to give their products or service an edge over others, like a Lion’s Roar or the taste of Coca cola or the smell of your favorite coffee..
Traditionally, trademarks have been considered to protect and distinguish the products and services of one brand from that of another. Trade Dress refers to the overall image or visual appearance of the product. However, with the passage of time, not only logos, symbols or taglines are being associated to goods and services but also sound, taste, smell, texture, hologram, motion, shape and the ambience of the goods or services. Thus when a mark goes beyond the realms of the traditional conventional category of being judged solely by the eye it is known as Non-Conventional Mark.
Today we are going to discuss Sound, Smell and Taste marks.
With the growth of e-media, the way consumers perceive a particular product have also changed. Sound has now become a very integral part in identifying and remembering a product which thus substantially adds value to the brand. Sound mark therefore refers to a sound which is distinct and can be used to identify the product by the consumers and also makes the product unique. Once the sound gains popularity, it can easily indicate the source of the product or the service and can be registered as a sound mark. ‘Sound’ has been included in the definition of trademark in various countries. Furthermore, as per section 26(5) of the Trade Marks Rules 2017, "where an application for the registration of a trademark consists of a sound as a trademark, the reproduction of the same shall be submitted in the MP3 format...accompanied with a graphical representation of its notations".
Recently in the year 2019, the rapper Pitbull obtained a sound mark for his signature yell “EEEEEEYOOOOO”.
The sense of smell is the strongest sense among all the five senses. Olfactory memory i.e. the memory of smell can easily facilitate in identifying a product. Additionally, scents also have the capacity of helping people in memorizing a picture. One of the serious problems with regards to smell marks is the representation in a visual way. Writing down the chemical formula for a smell as it is deemed to represent the substance rather than the smell. Another problem is that the storage with the registry. If the registry is provided with the sample of the smell, then how long will it be durable without its smell evaporating over time is a question regarding smell marks. One of the basic criteria for registering a smell mark is that it should describe the product it has been applied for. For example, the smell of a perfume cannot be trademarked as it would be describing the goods that is the perfume. Some of the examples of smell marks that are registered by the USPTO are bubble gum scent for sandals, toothbrush with the smell of strawberry, lubricants for combustion engines with the smell of strawberry, cherry and grape. In India, no smell marks have been registered till date. The UK's first smell trade mark was granted to Japan's Sumitomo Rubber Co. in 1996 for fragrance of roses applied to tyres. The mark was later transferred to Dunlop Tyres. The same year, Unicorn Products, a London-based maker of sports equipment, registered a UK trade mark for the strong smell of bitter beer to be applied to darts.
In India, no smell mark has been registered before the Registry.
In the year 2014, Verizon stores dealing in electronics of the United States registered a smell mark of “flowery musk scent” and in 2015, Grendene, a Brazillian footwear company registered a smell mark for bubble gum scented jelly sandals.
Taste marks are easier to be represented graphically as the written description of the taste can be used to indicate the taste of the goods. However once again, the challenge lies in functionality as seen in N.Y. Pizzeria, Inc v. Sya. A trademark for the taste of pizza or pasta cannot be granted as it inherently performs the function of making the same- i.e. adding flavour to the dishes. Thus we see thousands of chefs making dishes with the same ingredients and with no or hardly any changes. Any product meant for human consumption may inherently disqualify for taste protection under trademark given the functionality doctrine. So, Lays can’t stop competitors from selling Magic Masala as a flavour of chips unless a maker has stolen the trade secret of Lays.
Till date, no registration has been granted for taste marks in the world. Two notable applications for registration of taste mark came before the European Union Intellectual Property Office (EUIPO) and the United States Patent And Trademark Office (USPTO) but both of them ended up being rejected.
The use of non-conventional marks in India is meager. The knowledge and awareness of the non-conventional marks is very restricted. There is a long road ahead which is unexplored with respect to non-conventional trademarks. The evolution of trademark laws has definitely taken place in the country but it is mostly concerned with the conventional trademarks.
The glaring problems relating to non-conventional marks that needs attention are such as, there is absence of any express laws, which in turn makes registration of non-conventional marks comparatively difficult. The whole concept of non-conventional marks is still unknown to many people. There is a dire need of making explicit laws to overcome this issue.
Along with these issues, TRIPS Agreement also doesn’t have any clear mention of non-conventional marks. In contrast to this, it is also noted that TRIPS lay down the minimum conditions that needs to be followed and therefore the countries can add new things to these minimum conditions.
However, considering the change in branding and the need of the hour to be "out of the box", brands must consider non-conventional trademarks so as to differ them from their competition. In the long run, if there are more and more non-conventional marks filed, the Judiciary will have no choice but to ponder over it and amend the Laws so as to incorporate the the needful.