Exploring The Conflict And Coexistence Of Smell Trademarks With Traditional Knowledge And GI Protection In India
- IJLLR Journal
- 5 days ago
- 2 min read
V. Risheendra Varma, ICFAI Law School Hyderabad
ABSTRACT
The recognition of smell trademarks represents one of the most innovative yet complex developments in contemporary intellectual property law. Unlike conventional trademarks, which are visual, textual, or symbolic, smell trademarks rely on the perception of scent to identify and distinguish the goods or services of one business from those of another. This intangible nature makes their registration and enforcement particularly challenging, as it requires the ability to define, reproduce, and represent a scent in legal and commercial contexts. Jurisdictions such as the United States and the European Union have established frameworks for registering smell trademarks, which require strict criteria including distinctiveness, non- functionality, and demonstrable consumer recognition. These systems have been tested through various cases, guiding how non-traditional marks can be incorporated into established intellectual property regimes.
In contrast, India has not yet formally recognised olfactory trademarks, despite its growing market for perfumes, cosmetics, and aromatic products. At the same time, India is home to a vast repository of TK and a comprehensive GI framework, where many local products are closely tied to specific smells and cultural heritage. This overlap creates a potential conflict, as an aromatic feature could be claimed as both a trademark and part of community-owned TK. The legal, ethical, and procedural complexities arising from this intersection highlight the need for a nuanced approach to smell trademark regulation in India.
This paper aims to examine the conflict and coexistence of smell trademarks with TK and GI protection in India. It analyses international practices, particularly the United States Patent and Trademark Office’s examination procedures and landmark cases. It proposes methodologies for implementing olfactory trademarks in India, including sensory testing, consumer surveys, and descriptive representation of scents. The study also explores the role of trade secrets in the perfume industry, with examples such as DIOR, and considers the potential of the public olfactory domain, smells that are culturally common or regionally significant as a source of branding innovation.
The dilemma remains unresolved: Can India safeguard proprietary scents without undermining its vast repository of TK and shared cultural heritage? Or will efforts to trademark fragrances merely intensify the debate over the boundaries between private ownership and the public domain, deepening the conflict over what truly constitutes the collective heritage of humankind?
