When thinking of trademarks, logos, symbols and slogans are typically the first things that come to mind. Such visual marks have been the oldest and most accepted way to represent the sources of goods and services, with the first registered trademark being issued to Bass Ale in 1875. Indeed, the Lanham Act defines a trademark as "any word, name, symbol, or device, or any combination thereof."
Recently, however, companies have found other means to distinguish their products -- and to obtain trademark protection for those means. In some countries, businesses have even attempted to register animations, sounds, smells, and even tastes as trademarks for their products.
In the United States, color was determined to meet the legal requirements for trademark protection, in the 1995 case Qualitex Co. v. Jacobson Products Co., Inc. The Qualitex Company had been using a particular green-gold color on its dry cleaning pads, and registered the color as a trademark in 1991. After Qualitex brought a trademark infringement suit against competitor Jacobson Products, the Supreme Court held that color could be a valid trademark, as the particular color of Qualitex's pads had acquired a secondary meaning over time, sufficient to identify Qualitex as the source of the green-gold pads.
Non-visual stimuli have also been registered as trademarks. In 2009, the Argentine Trademark Office registered its first smell mark -- a fragrance of various fruits, which will be applied to containers. A total of five such marks were issued to L'Oréal. While the Argentine trademark law does not expressly cover scents, it does provide for a broad interpretation of distinctive signs, allowing for the registration of smell marks.
As smell is one of the strongest type of human memory, having potential to evoke distant images and emotions, it may even be that a distinctive scent is one of the most potent and effective ways to distinguish one's products from others on the market. Other smell mark registrations, in various countries, have included the "scent of fresh cut grass" for tennis balls, "a floral fragrance reminiscent of roses as applied to tyres," and plumeria scented sewing thread.
To be continued...
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