SMELL MARKS – A COMPARATIVE ANALYSIS

 Smell marks is the type of non-conventional marks where the smell is attached to any goods or services or any class of goods or services, which plays the function of its trademark. The aim of the trademark law is to grant a monopoly over a good or service by allocating a trademark to it, which any other person cannot use it. Similarly the non-conventional marks are also playing the same role, in the present scenario; the researcher is dealing with the smell marks where the smell will have the monopolistic character, restricting every other person to use it.

The most important factor that strikes in the registrability of the smell marks is the requirement of the graphical representation of the mark. According to the definition of the trademark under the trademark act, 1999 "trade mark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colors.

The graphical representation of the mark is the mandatory requirement which if not fulfilled will not be registered as trademark. But in case of the smell marks, which is not visually perceptible cannot be represented graphically. This is the greatest impediment in the registration of the smell marks because one of the main conditions is not fulfilled. The requirement of graphical representation is to lower down the cases for trademark infringement. The marks which are visually perceptible can be easily compared and differentiated with the other visual marks but in the case of smell marks, there is no visual perception, so the smell cannot be compared with the other smell because of its subjective nature. The sense of smell of one person can be better than the sense of smell of the other person.

The ability to smell also depends on the human perception, a person’s mood, environment; pregnancy can also be one factor, sex of a person, age of the person. The subjectivity of the smell marks makes it very difficult to get protection under the domestic trademark law. Nevertheless, it is an emerging area of law. In coming years, it will have to cross many hurdles to make its place in the domestic legislation. The researcher is of the opinion that the protection of smell marks has no single parameter which should be followed by every country in order to grant them protection. It is on the basis of the acceptance of such marks by common people of the country and the legislators of different countries. It is a debatable issue that whether smell marks should be protected or not and for such analysis the position of smell marks in India and other countries has to be analyzed.