{"id":11443,"date":"2018-02-10T10:19:02","date_gmt":"2018-02-10T15:19:02","guid":{"rendered":"https:\/\/omcabogados.com.pe\/?p=11443"},"modified":"2025-08-11T19:08:56","modified_gmt":"2025-08-12T00:08:56","slug":"las-marcas-olfativas-en-el-mundo-juridico-empresarial-referencia-al-derecho-comparado","status":"publish","type":"post","link":"https:\/\/omcabogados.com.pe\/en\/the-olfactory-brands-in-the-legal-business-world-reference-to-comparative-law\/","title":{"rendered":"The olfactory brands in the legal business world. Reference to Comparative Law"},"content":{"rendered":"
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Nowadays, the high competitiveness of the market has encouraged businessmen to use all available technical progress to the implementation and evolution of a product, therefore this process is generally accompanied by enormous efforts of research and development. However, positioning a product or service in the market does not only depend on its inner characteristics, but consumer\u2019s loyalty must be achieved, for which the use of all kinds of incentive is required to attract their attention. That is why the unconventional signals are constituted[1]<\/span>, as new forms of product differentiation, because \u201ctraditionally, in the field of distinctive signs, the differentiation of products or services in the market has been made through the use of signs or media of a visual or auditory nature, nevertheless, more and more entrepreneurs and experts in markentig <\/em>appreciate the enormous potential of other signs perceptible by senses other than sight or hearing, particularly smells that stand out for their enormous power of remembrance[2]<\/span>.\u201d<\/p>

OLIVENCIA Corinne, expert from the Office for Harmonization in the Internal Market (OHIM) of Europe says: \u201cIt is said that olfactory memories are among the most evocative, and the manufacturers are increasingly interested in us associating their products with pleasant aromas\u201d.[3]<\/sup><\/p>

On the other hand, for an aroma to fulfill the function of a brand, the consumer must identify the product through the olfactory sign, even when having to compare it with other products offered. Also, the consumer must be able to associate it with a specific business origin.<\/p>

The samples of olfactory marks in the commercial world are varied, for example: Singapore Airlines<\/em> uses a unique fragrance with an exotic touch, becoming part of their identity and contributing in creating a more pleasant experience for the traveler.<\/p>

A brand that is already using olfactory marketing <\/em>olfativo es la firma de moda\u00a0Abercrombie & Fitch<\/em>. Su fragancia de cabecera,\u00a0Fierce<\/em>, est\u00e1 muy presente en todas las tiendas de la marca. Fierce<\/em> es una aroma fuerte y atrevido que conecta con los consumidores m\u00e1s j\u00f3venes. El resultado es que Fierce<\/em> es una de las fragancias m\u00e1s vendidas en Estados Unidos y en Europa entre el p\u00fablico adolescente.<\/p>

For Sumitomo Rubber, Co<\/em>. the floral fragrance record used in tires was approved in the United Kingdom, and Unicorn Products<\/em> had the same luck when they registered the smell of beer that spreads by throwing a dart in Niza\u2019s 28 class.[4]<\/sup>

<\/p><\/p>

Also famous is the smell of fresh cut grass <\/em>for tennis balls and the scent of raspberry for fuel products which we will make reference in subsequent epigraph.<\/p>

Bankinter<\/em>, the sixth largest commercial bank in Spain, already uses the smell as mean of differentiating its services, and it is the first bank in the world that has made the leap towards aromatic marketing, for this, they have created their own fragrance, which consists of \"the smell of orange with a jasmine aftertaste\u201d. This fragrance is used as a hallmark of the bank in different supports that identify it, from the headquarters and offices thereof, even the stationery used in communications being addressed to customers.<\/p>

From the above we can say the olfactory brands have come to stay and leave their undying mark in the world of Industrial Property, since as the Mexican lawyer OLAMENDI expressed: \u201cThe future smells of fresh grass\u201d[5]<\/sup><\/p>

In that sense, it is valid to refer to the technical-comparative analysis of the registration capacity of olfactory marks in foreign legislations.<\/p>

The Paris Convention in its article 6.1 says what: \u201cThe determination of the conditions of deposit and registration of trademarks will be left to the discretion of national laws.<\/p>

Also, ADPIC in their article15.1 leaves this particular in the hands of domestic laws.[6]<\/sup><\/p>

The Singapore Treaty of 2006[7]<\/sup> states that marks consisting of signs are protectable if they can be registered as trademarks in accordance with their laws, falling responsibility in national legislations once again.<\/p>

The Regulation 40\/94 of the European Community<\/strong> does not consider them, although its acceptance could be presumed as long as they can be represented graphically, by saying in their Article 4 that all the signs that can be object of a graphic representation may constitute Community trademarks.<\/p>

The US Office (USPTO), requires for olfactory brand applications an adequate description of the brand. Due to the absence of a clear definition of what is considered by the USPTO as a graphic representation of a smell, the applicants have assumed as an equivalent their precise verbal description.<\/p>

Besides, according to the usual practice in that country, the required element in these types of brands is the consumer must experience the smell of the brand at the point of sale.[8]<\/sup><\/p>

On the other hand, in the United Kigdom, New Zealand <\/strong>and Australia<\/strong>, countries members of the British Commonwealth,<\/em> it is understood that the ability of an aroma to distinguish the goods or services of an olfactory brand is evaluated using the same criteria as in the case of any other brand, that means, determining if other merchants would want or legitimately need to use the aroma in the normal course of their commercial activity.<\/p>

So, if we go back to Latin America<\/strong>, we should start by quoting Directive 486<\/strong> of 2000, instrument that in matters of trademark applies to the Andean Community<\/strong> (CAN). Dicha norma en su art\u00edculo 134 al referirse a los signos que podr\u00e1n constituir marca se\u00f1ala de manera expresa la protecci\u00f3n a las\u00a0 marcas\u00a0 olfativas.\u00a0<\/p>

From Reading Article 134 of the above mentioned norm we deduce the general requirements established for all brands are applicable to olfactory signs, hence, it is prudent to mention them:<\/p>