Win and win: the benefits of the smell, tactile, sound and taste trademarks

In the field of Intellectual Property Rights, we conceptualize the figure of a trademark as that sign that can distinguish products or services in the market. In other words, entrepreneurs use these signs with the main purpose that when consumers see them in the market, they can relate them to the products or services they offer and, thus, be able to distinguish them from the others offered by other competitors.

Currently, with the constant increase in market competition, the consumers find themselves on a day-to-day basis with a large number of trademarks, being increasingly complex to identify each of them; in other words, consumers are saturated with trademarks. However, the trademarks that have usually been used by entrepreneurs consist of visible trademarks or also called traditional trademarks; that is, those made up of visual elements, such as images or words.

In this context, as innovative initiatives, trademarks composed of non-visual elements have emerged, such as textures, smells, sounds and flavors, which give great potential to trademarks so that they can be recognized by consumers, especially olfactory trademarks, since Richard Axel y Linda B. Bucks, both Nobel Prize winners in Medicine and Physiology in 2004 for their study on smell, determined that the olfactory memory of a human being is more powerful than the visual one; therefore, making it possible that the consumers when perceiving these trademarks, can relate to them with greater power than to the products or services that entrepreneurs offer, complying with the requirement of distinctiveness, which is an essential requirement that all trademarks must have so that the Trademark Offices can register and grant them protection.

However, in spite of the benefits that the use of these new types of trademarks can bring to entrepreneurs, the doctrine in various parts of the world discussed in first place, the aptitude of these signs so that they can be identified by the consumers and can be related to the goods that the entrepreneurs offer in the market. Secondly, and the issue that has been fundamental of debate for their admission to the Trademark Office records in order to be legally protected, is whether they are able or not to be represented graphically (an essential requirement for them to be registered in the Trademark Offices); that is, to grant them visual representation, giving rise to the question of how to visually represent elements that are not visual.    

Regarding the first debate, the majority doctrine and in these times, almost unanimously, recognizes that the other senses of the human being, different from those of sight, are able to allow the human being to distinguish products or services in the market; However, even with the various legislative modifications in some countries, the requirement of the “representation” of these non-visual signs has prevented them from registering with the Trademark Offices and, therefore, being protected by the competent authorities (except as which happens in the USPTO, the Office of Trademarks and Patents of the United States of America).

It is important to emphasize that, although the registration of a sign in Trademark Offices is not usually a requirement for its use in a territory, in many States it is an essential requirement for the administrative authorities of the place to grant protection. This protection consists, in large part, in sanctioning the natural or legal person who uses this registered trademark without the consent of its owner for the same products, services or those that are competitively linked. Indeed, the benefits of this protection is that the owner of a trademark can exclude third parties from using it. This exclusivity granted by the registration of a brand benefits entrepreneurs, as the consumer will only relate this sign to their product or service, without any confusion, providing according to their experience in the purchase of these goods, information such as: reputation, business origin, price, quality, among others.

On the other hand, we must add that these trademarks composed of non-visual elements not only benefit entrepreneurs but also a group of consumers who over time have been completely excluded from being able to differentiate products or services in the market, these are the visually impaired.

Indeed, the World Intellectual Property Organization (WIPO) as a specialized agency of the United Nations has adopted an Agenda for Development and the commitment to meet the Sustainable Development Goals (SDGs), within which, the number 10 consists in the Reduction of Inequalities which covers the social, economic and political inclusion of all people, and in this specific case, of the visually impaired as a vulnerable group. In this regard, the Trademark Offices of the Member States of the World Intellectual Property Organization are committed to ensuring that these inequalities are reduced and, clearly, the incentive in the use of these new types of trademarks, in addition to benefiting the competitiveness of entrepreneurs, it would also help to bridge the social gaps, and allow greater autonomy of this vulnerable group, including them to the economic sector as consumers, and as such, allow them to choose the products and services that best suit their interests, being able to differentiate one from each other, through smell, touch, sound or taste.

Based on the foregoing, it is considered that the Trademark Offices must make sufficient efforts to allow the registration of these new types of trademarks[1] and, with the benefits that come with the protection provided by the Trademark Law, encourage their use in favor of the businessmen and the visually impaired. 

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[1]Zevallos Labrin, M. F. (2018). Marcas no tradicionales no visibles: análisis de la normativa legal vigente en el Perú. Una gran oportunidad para las marcas olfativas (tesis para optar el título profesional de Abogado). Universidad de Lima. http://repositorio.ulima.edu.pe/bitstream/handle/ulima/7114/Zevallos_Labrin_Marlenny_%20Fernanda.pdf?sequence=1&isAllowed=y