February 23, 2006

Smelly Trade Marks

Posted in Uncategorized at 4:45 pm by thelawthoughts

Interesting case decided a little while ago in the EU. Apparently, the smell of strawberries cannot be trade marked, because it cannot be represented graphically. IPWar’s points us to the Trade Marks Office manual, which describes section 17 of our Trade Marks Act 1995 (Cth), where a TM is a ‘sign’ etc. A sign is defined as including scent.

So, as long as you are using the smell of strawberries, or indeed rotting plant material or other such scent as a badge of origin, smells can in Australia be registered on the Trade Mark Register.

An interesting divergence between our law and that of the EU.

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2 Comments »

  1. Smells can be represented graphically though. I would imagine that there is a molecule of a certain smell. Hmmm how do those in the perfume industry handle this? Or am I getting mixed up with patents and trademarks?

    Can sounds be trademarked? I’m pretty sure Harley Davidson has some pretty heavy IP on their exhaust note. Then again they can just patent the design of the muffler and the knuckle head that produces it.

  2. Yes, you’re right, there probably are molecules of smells. However this is dealt with by patent law and you can’t patent things naturally occurring in nature. You have to do something with these elements before you can get a patent.

    Yes, sounds can be TMed. See the full def of ‘sign’ below:

    “sign” includes the following or any combination of the following, namely, any letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent..

    However, what they really mean when they say ‘represented graphically’ in the EU is something that can be drawn on a page. Don’t forget the threshold requirement for a trade mark is that it is a sign being used as a badge of origin. So, if you can put something down on paper, then that’s what graphically means. We don’t have this requirement in Australian law, however.

    And yes, HD can patent that design, but that doesn’t protect the sound as a trade mark. Nothing is protected until it is registered as a trade mark under the TMs Act. Also, no patent protection is gained untit it is registered either.

    Just useful little bits of info!!

    If you are really interested, search the ATMOSS database at ipaustralia.gov.au and see what kinds of things get registered.


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