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Analysis of Legal Protection of Non-traditional Trademarks from a Global Perspective—Taking Scent Trademarks as an Example
- 1 Wuhan Donghu University
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Abstract
With the constant advancement of the economy and technology, especially the development of high-tech technology, the traditional trademark can no longer meet the needs of social and enterprise development. From traditional visual trademarks to three-dimensional trademarks, sound marks, and even scent marks, non-traditional trademarks are playing an increasingly important role in transactions. Therefore, the legal protection of non-traditional trademarks is particularly important. By collecting and reading the relevant references and materials, this paper adopts the methods of literature analysis, comparison method, and case analysis to analyze of Legal protection of non-traditional trademarks from a global perspective—taking scent trademarks as an example. The paper points out the current situation in the protection of non-traditional trademarks, taking scent marks as an example, and puts forward some feasible suggestions, such as: Reference the "staff " representation method, Promoting scientific and technological progress, and Scent branding prompts in the product. It can be concluded that the registration and protection systems of scent trademarks in various countries are not perfect, they can be shown in the strict requirements for registrable trademarks regarding the representation of odor, the distinctiveness of trademark registration, and the functional of marks. Countries should pay more attention to them. The study suggests that it is necessary to improve the scent trademark legislation, which is conducive to better protection of intellectual property rights, encourage innovation of enterprises, and safeguard the interests of enterprises.
Keywords
Scent trademark, legal protection, non-traditional trademark, protection suggestion
[1]. Annie Pilon, Want More Sales? Your Store Needs a Scent, SMALL BUSINESS TRENDS (Nov. 3, 2014) (alteration in original), https://smallbiztrends.com/2014/11/your-store-needsa-scent.html?tr=sb_ pop_tcs [https://perma.cc/ZLP9-MAR6].
[2]. SCENTAIR, https://scentair.com [https://perma.cc/7PFX-N2ZQ].
[3]. Suzanne Bopp, Now Smell This, SALON (Sept. 17, 2008), https://www.salon.com/ 2008/09/17/scent_marketing [https://perma.cc/6KW8-WY96].
[4]. Rym Bouzaabia, The Effect of Ambient Scents on Consumer Responses: Consumer Type and His Accompaniment State as Moderating Variables, 6 INT’L J. MKT. STUD. 155 (2014), https://www.ccsenet.org/journal/index.php/ijms/article/view/33672 [https://perma.cc/ RW4J-HSFF].
[5]. Raja Selvam, What Is Smell Trademark or Scent Trademark? – With Examples, SELVAM & SELVAM (Mar. 13, 2011), https://selvams.com/blog/smell-trademark [https:// perma.cc/HB7J-TFXP].
[6]. Maaike J. de Bruijn & Michael Bender, Olfactory Cues Are More Effective than Visual Cues in Experimentally Triggering Autobiographical Memories, 26 MEMORY 547 (2017),https://www.tandfonline.com/doi/full/10.1080/09658211.2017.1381744[https://perm a.cc/5U YH-L4SC].
[7]. Suzanne Bopp, Now Smell This, SALON (Sept. 17, 2008), https://www.salon.com/ 2008/09/17/scent_marketing [https://perma.cc/6KW8-WY96].
[8]. Rym Bouzaabia, The Effect of Ambient Scents on Consumer Responses: Consumer Type and His Accompaniment State as Moderating Variables, 6 INT’L J. MKT. STUD. 155 (2014), https://www.ccsenet.org/journal/index.php/ijms/article/view/33672 [https://perma.cc/ RW4J-HSFF].
[9]. Raja Selvam, What Is Smell Trademark or Scent Trademark? – With Examples, SELVAM & SELVAM (Mar. 13, 2011), https://selvams.com/blog/smell-trademark[https:// perma.cc/HB7J-TFXP].
[10]. Trademark Procedures and Strategies: China, WORLD TRADEMARK REV. (Mar. 29, 2017), https://www.worldtrademarkreview.com/portfolio-management/trademark-procedures-and-strategies-china [https://perma.cc/C5FM-WRM9].
[11]. Id.
[12]. Registration No. 5,467,089.
[13]. Douglas D. Churovich, Scents, Sense or Cents?; Something Stinks in the Lanham Act, 20 ST. LOUIS U. PUB. L. REV. 293, 312 (2001).
[14]. Brazil Industrial Property Law, 9.279, Art. 122 (2013), https://www.jpo.go.jp/e/system/laws/gaikoku/document/index/brazil-e_industrial_property_law.pdf [https://perma.cc/3J4S-RTV4].
[15]. Potentiality of ‘Smell’ as a Trademark and its Limitations, IPR LAW INDIA (Jan. 15, 2021), https://iprlawindia.org/potentiality-of-smell-as-a-trademark-and-its-limitations[https://Perma.cc/N57U-W6DC] (quoting Indian Trade Marks Act, Sec. 2 (1999)).
[16]. TMEP Chapter index, Chapter 1200: Substantive Examination of Applications1202: Use of Subject Matter as Trademark.
[17]. See In re Pohl-Boskamp GmbH & Co., 106 U.S.P.Q.2d 1042, 1052 (T.T.A.B. 2013) (noting the insufficiency of applicant’s evidence of acquired distinctiveness in light of evidence that the use of peppermint scent by others in the relevant marketplace (i.e., pharmaceuticals) tends to show that such scents are more likely to be perceived as attributes of ingestible products than as indicators of source); In re Owens-Corning Fiberglas Corp., 774 F.2d 1116, 1125 (Fed. Cir. 1985) (requiring concrete evidence that the mark is perceived as a mark to establish distinctiveness).
[18]. TRADEMARK ELEC. SEARCH SYS.,https://tmsearch.uspto.gov/bin/gate.exe?f =login &p_lang=english&p_d=trmk [https://perma.cc/9L3D-7ELY] (follow “Word and/or Design Mark Search (Free Form)” hyperlink; then search “6 [MD] and ‘scent’ and live [LD]”).
[19]. Sarah Wells, Robots that Can Sniff Out Chemical Weapons and Pollution Are Coming Soon–Study, INVERSE,https://www.inverse.com/innovation/sense-of-smell-robots[https://perma.cc/46L3-R572].
Cite this article
Mao,X. (2024). Analysis of Legal Protection of Non-traditional Trademarks from a Global Perspective—Taking Scent Trademarks as an Example. Lecture Notes in Education Psychology and Public Media,52,36-41.
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