Trademark Protection for Sound and Smell Marks: Impractical or the Future?

Author: Divyakshi Jain, Student, National Law University Jodhpur, India

Abstract This paper focuses on two of the most conspicuous non-traditional trademarks namely, smell and sound marks. The paper analyses the sound and smell marks and the reason why they have not been able to catch momentum despite the strong sensory value of both sound and smell. There has also been a reference that difficulty in registration could also be attributed as one of the causes of this unpopularity. The cause for such difficulties has also been dealt with in the paper. Furthermore, it also looks into the attitude of various jurisdictions to these marks and their criterion for the grant of such marks. There are some suggestions which the author feels are necessary to enhance the future of trademark not only in India but the world. The primary reason being that sound and smell marks can be great mediums of distinguishing a particular product from another after fulfilling the stringent requirements of the grant of such a mark. Thus, in order to fulfil the above stated purpose, the paper first gives a short overview of trademark and concerned law, then it moves on to a brief introduction to non-traditional trademarks and how they have been overlooked. It further discusses the sound trademark or sound mark as well as the reason why they have not been as popular as expected along with an analysis of the legal position of various jurisdictions. It goes on to outline the smell mark, its reason for unpopularity and legal position as well. It finally concluded with the author’s analysis of the subject.

Keywords: Trademark, Non-Traditional Trademark, Sound Trademark, Smell trademark.

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