A recent article in The Wall Street Journal addresses the fascinating topic of scent marks. While the marketing world is increasingly exploring the possibilities of advertising through appeals to our senses other than sight, among them touch and smell, the question arises as to whether scent marks can be protected legally – and hence carry value for their holders.
While in the US some scent marks have received the USPTO examiner’s approval, and descriptions such as ‘the mark consists of the scent of’ bubble gum, oranges, piña colada, vanilla, and so on can be read in the Register, this is not the case in the EU or in Switzerland. Indeed, for a mark to be registered in those jurisdictions, it must first be capable of being represented graphically. Failing that, a mark can simply not be registered in a paper or electronic Register.
Capturing the scent There is a reason for this. Indeed, the problem with scent marks may be more technical than legal, as the case of the Eddy Finn Ukulele Company’s piña colada-scented ukuleles shows. This company, which sells ukuleles smelling of piña coladas, discovered that ukuleles they had shipped to overseas markets had lost their scent during the trip.
The volatility of scents is not the only issue, however. As any perfume-wearer would know, scents also evolve with time and moreover are perceived differently from one person to another. And these problems also have implications for the registration process. What should be filed? Bottled samples, whose content will change over time, and which two different examiners will perceive in different ways? Chemical formulas?Descriptions? The answer has yet to be found. Moreover, if we keep in mind that the function of a mark is to distinguish brands from each other, this might prove to be quite the challenge when dealing with two marks ‘consisting of the scent of oranges’, for example.
That said, scents remain a wonderful marketing tool worth exploring. When we recall that smell is the sense that conveys the strongest emotional value of all and that emotions play a crucial role in consumer behaviour, the massive potential of scents in the market becomes clear. We all have our madeleine of Proust, and smell can bring to the surface feelings and sensations that were deeply buried within us and thought lost forever.
Similarly, studies have shown that the smell of vanilla has a calming effect on cattle, and this has led to the wide use of this scent in the feed industry. A pleasant scent could have the power to blur the sensation of time for consumers and modify their visual or taste perceptions in ways that may encourage them to purchase more. This power is already being harnessed in boutiques and malls around the world: Abercrombie & Fitch, with its signature scent ‘Fierce’, and Verizon Wireless, with the ‘flowery musk’ that perfumes its stores, are two major players that use scent marketing with flair.
Anca Draganescu is IP counsel at Novagraaf in Switzerland
