Abstract
In the current growing global commercial turnover of goods and services, there are increasing demands on the ways of their individualization. This applies both to traditional methods of individualization (corporate name, trademark, commercial designation, name of origin, etc.) and non-traditional (olfactory trademarks). The purpose of this study is to study and analyze doctrinal concepts, norms of the current legislation, and law enforcement practice concerning the protection of rights of olfactory trademarks. In order to achieve this objective, the study used a comparative legal method, which analyzed the legal and regulatory framework, as well as the grounds for refusing to register non-traditional trademarks in various legal systems and national jurisdictions. The task of the authors was to conduct a comprehensive study of legislative regulation and practice of legal protection of olfactory trademarks in various jurisdictions. The result of the research is the formulation of a general trend in different jurisdictions toward the legislation on registration of exclusive rights to non-traditional trademarks, which with the help of aromas (smells) allow individualizing the owners of goods produced by them and/or commercial services provided.
Highlights
Trademarks are means of individualization in commercial circulation that allow a potential consumer to identify and distinguish an attractive product or service
Practical law enforcement issues related to legal protection of the results of intellectual activity arise when applying to the national patent office concerning the smell of perfumes: to register the rights to a patent, or still register the rights to smell as a trademark
There is an expert opinion that the amendment to the EU Directive in 2015 significantly weakened the requirements for graphic representation of the denomination, which radically changed the practice of registration of non-traditional trademarks in the European Union (Calboli and Senftleben, 2018)
Summary
Trademarks are means of individualization in commercial circulation that allow a potential consumer to identify and distinguish an attractive (acceptable, necessary) product or service. Since an olfactory trademark may have the properties of hyper-attractiveness as an effective mechanism to attract consumers, the so-called aroma-marketing is entirely developed in most countries around the world, smells (aromas) quite often accompany goods and services during advertising campaigns. Experts have identified two types of innovation, with ever-increasing capitalization, associated with the sense of smell or odors (Hawes, 1989). The first type of innovation is aromatic or odors, perfumes, and their combinations, which are acquired because of their direct attractiveness to the sense of smell, such as perfumery, all kinds of perfume oils, aromatic essential oils, room and air fresheners. The second type is secondary aromatic products, perfumes for a product, or secondary smells. They include additional smells to add to the main products, for which the possibility of smell is optional, for example, such as scented wipes, disinfectants and detergents, cosmetics and various children's games, as well as most plastic products and other products, which are odorless or with not suitable odors for concealing specific chemical components (Hammersley, 1998)
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