Sweet smell of success can become a nasty odour for brand owners
Millions of bottles of perfume flew off the shelves in time for Valentine's Day. But as legal and brand guru Ardi Kolah reports, there's still a long way to go before European trade mark law will allow a manufacturer to register a smell in a commercial context and protect it from being copied.
Last year, Dr Richard Axel and Linda Buck won the Nobel Prize for scientifically describing how odour-sensing proteins in the nose translate specific tastes and smells into information in the brain. Incredibly, you and me can recognise and remember an astonishing 10,000 smells -- from pong to perfume.
When you sniff a smell, different types of molecules flow over the receptors in the back of the nose. That activates an array of the receptors but only those primed to respond to those particular molecules. The brain notes which receptors are activated (a combination code is unlocked) and interprets the pattern as the smell.
Given that scientists have now found the key to unlocking the combination code to the olfactory memory system in the brain, marketers are now busy finding new ways of unlocking the combination code to our wallets by using smell in their marketing campaigns.
Legal protection for smell?
Technically, under EU law, a smell is capable of trademark registration. However in practice, it's almost impossible to register a smell as a trademark.
In the case of Ralf Sieckmann, the European Court of Justice refused his application for a scent described as "balsamically fruity with a slight hint of cinnamon," on the grounds that it couldn't be graphically represented (a requirement under Article 2 of the EU Trademark Directive).
Since the decision in Sieckmann, it's been fairly clear that smells can't be registered in the EU or its member states, leading some commentators to observe that it's unlikely that there will be many (if any) national or community marks granted for smells.
That said, does the new discovery change anything? Would the identification of an "odorant pattern" now overcome the ECJ's qualms about registering smells as trademarks?
The ECJ had three primary methods identified to it for "graphically representing" smells:
(a) chemical formula
(c) deposit of the smell.
(a) was rejected because the formula wouldn't be intelligible enough to the people who need to know what the mark is (to avoid infringement of it, for example).
(b) was rejected as not being precise enough (one early registered mark was for the smell of fresh cut grass)
(c) was rejected as not being durable enough.
The new scientific discovery has little to do with example (c).
It's possible to imagine that the new discovery would lead to a way of uniquely identifying smells through something like a colour chart, with numbers representing the colours. These are available to define colours on web pages, for example, or in the printing process.
Registration of colours is currently permitted when those colours are applied to products or services and attain the required association with them.
So why not smell?
If scientists can now create a "smell chart" that precisely identifies smells, then the ECJ's objections seem to subside.
Can legal barriers be overcome?
If colour definitions, according to the definition used, are precise enough to define colours, smell definitions, according to the new information, might also be sufficient. Admittedly, there would need to be a machine that could reliably reproduce smells based on the formula used.
Of course, not all objections would be removed even if this could be achieved.
For example, there are some additional graphical representation problems -- brand owners would need to represent what they were protecting.
That means brand owners would need to indicate not only the definition of the smell, but also the concentration that they were protecting. And how far from the product must brand owners be to find the required concentration?
In addition, a trade mark has to identify the product; it can't be a result of the product.
For example, many products, such as cleaning preparations have scents added to them. But consumers of such fragranced goods are unlikely to attribute the origin of the products to a single brand owner based on the fragrance of the loo cleaner.
On this basis, rubber smell for tyres wouldn't work, chocolate smell for chocolate wouldn't work, and baked goods smell for baked goods wouldn't work either.
Finally, what do we do as the smell's strength decreases or changes over time?
This may well be the biggest obstacle of all in the pursuit of legal protection for smell.
For a smell to be a trademark, it must be durable. To the extent that the smell doesn't last, it can't stand as a trademark.
However, as marketers seek to create new brand extensions into new product areas then smell becomes an increasingly important aspect of differentiating and protecting a brand. And scientists will be forced by marketers in finding a way of making a smell last forever.
Perhaps when that happens, law will catch up with science. And the smell of a product or service will become as distinctive as its name or packaging.
Ardi Kolah is a marketing, public relations and sponsorship practitioner. He is author of Essential Law for Marketers and is ranked in the top 50 thinkers in marketing in the world by the CIM. He writes a regular column for Brand Republic and The Marketer.
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