elenasz

Scent marks – differences in registration criteria: NZ cf Argentina

In Uncategorized on November 13, 2009 at 2:43 am

I read with some interest this week, at International Law Office, that the first scent trade mark has been registered in Argentina.

There were a couple of interesting things about this case, as reported at ILO. First, Argentinean trade mark law does not provide for registration of scent trade marks per se. The trade mark, filed by L’Oreal, comprised the fragrance of a (specified) fruit applied to the container of the goods (there were a number of applications for different fruit scents). The application was filed in international class 3 so it would cover the type of product that of itself usually has a scent (i.e. perfume, body lotion, shampoo etc). In finding the trade mark registrable, the National Institute of Industrial Property did not require the trade mark to be capable of graphic representation or visual perception, as long as it could be described in words.

This article caused me to check to see whether in the 10 years since it has been possible to register scent trade marks in New Zealand, any had in fact proceeded to registration. To my surprise I see only one scent trade mark application has been filed in New Zealand – “the smell of cinnamon” for pharmaceutical products – and this single application was denied registration by the Commissioner of Trade Marks.

I see that proprietor’s of scent trade marks in Australia have fared only marginally better with one scent mark registration for a Eucalyptus Radiata scent for golf tees.

Clearly our sense of smell is a greatly overlooked potential for brand owners and marketing people.

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