Can you trademark a color or a smell?
Think of the peculiar fragrance of Chanel 5 or of the distinctive brown color of the UPS trucks. You would certainly not deny that these features constitute an important part of their brands, as much as their logo. Sometimes, like in the case of Chanel, they are not just part of the brand but they are also the product itself.
Nevertheless, non-conventional trademarks seem to be at the forefront of IP law. Scents and colors have just started receiving protection and not every legal system grants the same degree of protection.
The problem with registering scent trademarks lies in the fact that the definition of odor is quite subjective and therefore open to interpretation. On the one hand, human perceptions of scents can vary subjectively; on the other hand, we have limited means to convey the distinctiveness of a scent with words. So for instance, the description of an “aldehydic top note from aldehydes, bergamot, lemon and neroli” which came with the trademark application of Chanel 5, says little or nothing of the scent, unless it’s accompanied by a sample that can be smelled.
Brazil excludes the registration of olfactory marks: under law No. 9.279/96 only trademarks that are visually perceptible can be registered. The limitation is clear-cut in the letter of the law and seems not to be up to interpretations. Curious to note that one of the first successful scent marks granted by the US trademark office came from the Brazilian company that trademarked the scent of bubblegum for…sandals.
On the contrary, Argentina admits scent marks as there is no substantial requirement in the law that trademarks should be “visually perceptible” or “graphically represented.” In January 2009, the INPI granted the first scent mark to L’Oréal, for the fragrance applied to the boxes of its shampoo range for children.
What about color?
A single color could have acquired a substantial distinctiveness through past use and, therefore, deserves protection. Also, in theory, colors can be determined and described more easily than odors through the Pantone colorimetric system.
However, Brazilian IP law does not admit the registration of color trademarks, if the color comes without any limitation of shape. In other words, the color per se cannot be trademarked, unless it has been applied to a particular object: in that case, the object and the color can be trademarked as anunicum.
Similarly, in Argentina, a single color cannot be trademarked, as Art.2 of Argentina Trademark law No 22362/1980 expressly excludes that “the natural or intrinsic color” of products or a “single color” applied to them could be the object of registration. In 2006, in the pivotal case 2986/98, the Federal Court of Appeal rejected the claim of the popular chocolate brand, Milka. The company was trying to protect its distinctive lilac shade from a competitor who was using packages with the same color. The Court stated not only that colors are not granted trademark protection, but that a color was not enough to grant distinctiveness to the package, claiming that consumers would recognize the products through their trademarks.
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