Digitizing Scents: Comparative Analysis Of Registrability And The Future Of Olfactory Trademarks In India
- IJLLR Journal
- 1 day ago
- 1 min read
Dhanashree.R, Fifth Year, B. Com. LL. B, School of Law, SASTRA Deemed University, Thanjavur, Tamil Nadu, India.
Ananthika G.P., Fifth Year, B. Com. LL. B, School of Law, SASTRA Deemed University, Thanjavur, Tamil Nadu, India.
ABSTRACT
The Development of trademark law has gradually incorporated non conventional marks such as shapes, colors, sounds and smell, where smell acts as a unique way to identify products and services. Globally the acceptance of scent marks varies under the US law “Lanham Act” governs the registration of smell marks, while the EU follows strict seven-fold test established in the precedent case. In India sections 2(1)(zb) and 2(1)(m) of the Trade markings Act, 1999, along with Rules 2(1)(k), 23, and 26 of the Trade Marks Rules,2017statesthatsmellmarksarenearly impossible to register in India as the law requires permanent graphical representation. Notably Smell marks are not expressly prohibited and there is no precedent to address their registrability. This leads to paradox since color and sound marks are recognized, smell remain unexplored despite being their capacity to influence consumer perception, psychology and brand loyalty. This paper investigates the reasons behind India’s ongoing refusal to acknowledge olfactory trademarks, exploring the legal, institutional, and representational hurdles that maintain this conservative stance. Scent can be objectively recorded by using Electronic Nose, scentography, and neuroscientific techniques like EEG which qualify for proper recognition of smell identity. India can protect olfactory trademarks and prepare its intellectual property system for future developments by applying scientific methods to address representation, uniqueness, and enforcement concerns.
Keywords: Olfactory, Trademarks, EEG, Electronic nose
