Today, it is illegal to use a Coca-Cola bottle shape , copy the ring tone of a Nokia or impregnate

the scent of raspberries. It is the consequence of the registration of unusual signs as a trademark.
They are called non-traditional trademarks. Traditionally trademarks consist of letters, numbers,
logos etc. However, the trademarks mentioned are embodied in sounds, tastes, smells, colours and
animations. As a result of their nature, a number of academicians have argued their capability to be
a trademark and reached different conclusions. Thus, it is still a grey area for law. Nowadays,
companies spend billions of dollars to compete for public interest and to be distinct. This heads
companies to non-traditional trademarks so it is worth examining. Although there is no special
regulation for them, elastic interpretations of European and US courts in trademark definitions,
enable the registration of unusual signs. Yet there are certain fundamental problems with the feature
of such signs. Therefore, this project supports the idea that we shouldn’t accept unusual signs as a
trademark. It focuses on some issues of non-traditional trademarks, namely smell marks, and
criticises their capability.
Utilizing smell marks as a trademark is quite original for law. Thereby it causes a lot of questions.
However before the smell mark’s problems which are caused by its origin, there is a priority issue to
discuss. Is the sense of smell reliable and sharp enough to distinguish the difference between similar
smells? This is the primary question because McGrath (2003) highlighted that: ‘The effectiveness of
scent mark will depend on the ability to satisfactory distinguish between different smells.’ Thus
before the scent mark, sense of smell should be examined. One research study indicated that we
can differentiate a dissimilarity of 26 percent or more in odours. This rate might be sensitive enough.
However if it is compared with other senses’ it will be seen that, the rate is not sensitive at all. For
instance: Humans can detect the difference of two sounds, if they just differ by 0.3%. It shows that
hearing is almost 100 times more sensitive than smell. Therefore we can not completely rely on our
senses when distinguishing smells. In addition, the perception of smell is not composed only
sensation of scents. Tremblay (2005) states that: ‘sense perception is contextual, that is to say, it
depends on the object observed, the conditions where the object is placed and our own senses.’
Thus it is not only dependant on our senses to distinguish the smell. There are also different
conditions which affect our sense perception. Moreover’ people have individual differences. Despite
having general consent on the major kinds of scents, important differences can consist. These can
be dependant on personal experiences, illnesses or gender. Shepherd (2007) claims that most
common known difference is the one which depends on gender. With the variation during the
menstrual cycle, women have higher acuity for smell. All these facts indicate that scent may
distinguish the good. However our senses neither reliable nor the same for all people. It changes
depending on location, mood, gender, e.g. Thereby at the point of sale, scent is not enough on its
own to distinguish the difference between similar smells.
Secondly, in the world a considerable number of people can’t perceive odours. This illness is
known as anosmia. In the other words, anosmia is a lack of functioning olfaction. According to the
website of medicinenet: ‘ loss of sense of smell can be due to number of things including swelling
within the nose that prevent odours from gaining access to the olfactory area. The swelling may be
from a cold or allergy.’ The people who have anosmia could never perceive the smell of trademark.
The issue is that the basic function of a trademark is to distinguish between smells. If people are
incapable of smell, how can they distinguish the product? Phillips (2003) states that: ‘there are many
blind or partially sighted or illiterate consumers who can not discern the word Schweppes on the
label of tonic water bottle, that word remains a trademark nonetheless.’ However if they want to read
the label of something’ they will have options. The most basic option is special alphabet called
Braille. With this alphabet traditional trademarks, which are consist of letters or numbers such as
Schweppes, can be read by blind or partially sighted people. Thus, the label can be used to
distinguish the goods. In contrast anosmia sufferers can not smell the product’s odour even with
medical or technological support.
Besides these, there are also some significant issues which occur in functioning as a trademark.
The first obstacle is absence of products smell at the sale stage. Companies always package their
fragrant products. Thus, the odour may be hardly perceptible by purchasers so the product’s odour
cannot assist purchasers to identify the good at the stage sale. Some academicians claim that at the
point of sale, a sample of odour could solve the issue. However, as McGrath (2001) points out that:
‘If the scent of a product, such as perfume, is available for sample prior to the sale, the perfume will
probably be purchased because of the scent alone. However, as the scent is not being indicated the
source of product such a purchase will be made without the assistance of such an association.’
Moreover, the purchaser is unlikely to count on his or her sense of smell alone. In general, people
rely on sense of sight to recognize the goods. Owing the fact that the sense of smell is subjective, it
may differ from one day to another, this is attributable to illness or allergies. The smell of the good
may also change because of surroundings. Consequently, scent does not have a successful function
as a trademark.
The most demanding and controversial problem of scents are the graphic representations.
Presently, three techniques are accepted for graphic representation: chemical formula, sample and
description. However, this is not an absolute solution. Firstly, the chemical formula option is not
adequate because the formula designates the substance not the odour. According to the
Patentbaristas website: ‘Chemical formula lacks clarity and precision, because of the lack of
technical knowledge on the common man.’ Furthermore, identifying the odour by looking at its
chemical formula is not feasible for many people. Representation with a sample option is inadequate
as well. It is neither long-lasting nor stable. Besides these, as a result of volatilization, it fades and
becomes different overtime. The last option of representation is its description which is also
insufficient. Most of the time words alone are not sufficiently precise. In contrast, an OHIM Board of
Appeal (1999) concluded that: ‘The smell of fresh cut grass words were sufficient graphic
representation.’ However, if the smell filled an entire shop, thus the purchaser can not notice the
tennis balls as being the source of fresh grass ,the smell wouldn’t distinguish the good or if one
competitor company impregnate their balls with the similar odour, would it result in confusion with
the fresh cut grass smell? There might be similar conditions in different situations. Moreover, in Ralf
Sieckman v. German Patent Office the requirement of graphic representation has become tougher to
fulfil. It was concluded that the words balsamically fruity with a slight hint of cinnamon, the formula
c6h5-ch=chc000ch3 or the deposit of the sample in a receptacle did not fulfil the requirements. The
result of these, most of the time smell marks are not registered because of incapability of graphic
representation.