In recent years, businesses have discovered a new way to capture consumer loyalty: through their noses. Companies have begun to invest heavily in the development of scent marks and innovative digital scent technology that will disseminate signature scents through the Internet and television; however, the standards surrounding scent mark registration and infringement remain hazy due to a lack of precedent and conflicting global legal standards. While US and European courts have determined that scent marks can exist under current laws, the registration requirements and infringement standards remain unclear.
This Note analyzes the four major issues that arise in scent mark jurisprudence: (1) the written description requirement, (2) the application of the functionality doctrine, (3) the possibility of scent depletion, and (4) the risks of scent confusion. Imposing a categorized registration process and a simplified scent mark infringement analysis rooted in semiotic--or sign-based--theory can eliminate the concerns surrounding scent mark analysis. A system that includes a registration process that requires the presentation of a trademark's semiotic elements as well as an infringement analysis that mandates only the examination of consumer-confusion surveys secures the legitimacy of scent mark registration and serves the traditional rationales for trademark law.
Erin M. Reimer,
A Semiotic Analysis: Developing a New Standard for Scent Marks,
14 Vanderbilt Journal of Entertainment and Technology Law
Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol14/iss3/5