Graphical Representation of ‘Smell’ and ‘Sound’ Mark - Critical Analysis

In recent years, a development has been seen in the arena of trademark apart from the regime of traditional trademarks the trade mark registries has seen an increase in the applications for sound, smell, color, tastes, Tarzan’s yell, textures, scent, shapes etc. It is these marks which are termed as non-traditional or non-conventional trademarks. Now a question comes, from where if at all such non-conventional trademarks are entering the domain of intellectual property? Reason behind this invasion lies in the broad and inclusive definition of trademark as it has been kept wide open for interpretation. On one side the trademark has registered in past only those subject matters which are conventional in nature or such mark which are capable of being represented graphically i.e. in visual manner and contains words, figures, signs, symbols etc. On the other side with the development of law relating to trademarks emphasis has shifted towards functional character rather than traditional ontological stand of sign. Anything and everything that is capable of communicating to the public at large the origin of goods and services and is possess distinctive feature, becomes capable of being registered as trademark. This paper evaluates the different position with respect to non-conventional trademarks and their graphical representation and how law has developed with time. In this paper particularly law relating to sound and smell has been dealt in detail. The aim of the paper is to analyze the requirement of graphical representation of Non-conventional trademarks. In this paper in particular ‘sound’ and ‘smell’ marks will be dealt more elaborately. The objective is to critically analyze the position prevailing in US, EU, Germany, Australia and India. The scope of this paper is limited to the comparative study of ‘graphical representation’ requirement in US, EU, Germany and India with respect to ‘sound’ and ‘smell’. The questions sought to be answered by the paper Is Graphical Representation requirement a pre-requisite for granting trademark? Assuming that it is a pre-requisite then how sound and smell can be represented graphically? Whether requirement of distinctive character alone would ensure the trademark protection?