When one speaks about intellectual property, the mind gravitates towards the traditional works, such as music, art, and books. Yet can copyright manifest in other strange and wonderful ways? How does the law of intellectual property apply to things like, experiences, traditional knowledge, plant breeds, databases, NFTs, etc. The following discussion will unpack how scents interact with trademark law.
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Apparently, there used to be a point in time where a bottle of Chanel No.5 was sold every 55 seconds. Sadly, due to the brand’s overwhelming success, they now sell a bottle every 30 seconds, ruining the numerical 5 alliteration. This must be what Kanye was talking about when he spoke on suffering from success. Despite having such a wide and dominating part in the market, would you believe someone if they had told you that it is almost impossible to trademark a scent?
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It is true, Chanel No 5 failed to get trademarked in the European Union because their law requires a work to be able to be ‘represented graphically’. Although not impossible, with some scents being trade marked, the cases are far and few between, and are almost always unlikely in South Africa. Â
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Internationally, certain scents have been trademarked, such as the famous toy store, Hosbro, which has federally trademarked the scent of their play-doh. The massive obstacle to trade marking scents is the functionality doctrine. Trademarks are intended to protect a brand’s identity, rather than to gate-keep a functional/practical item. That is rather the domain of patent law, however, patents themselves are often quite limited in the time and scope of their practice, and operate quite differently to copyright and trademarks.
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Perfume, is functional. The function is to make you smell nice. For that reason, they do not fall within the traditional domain of trademarks. Whereas, play-doh, the smell is circumstantial, it is a byproduct of the item, merely auxiliary, and thus is able to be trade marked.
Edited by Bryce Crockart
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