Psychological impact of olfactory branding: The future of smell marks in India

Scents have been used by business organizations for commercializing their products since historic times. Because of the psychological connect that a consumer immediately makes as he smells something unique, olfactory branding is considered as a very productive and effective marketing tool. Trademark law attempts to protect a brand's identity with the ultimate motive of preventing consumers from deceptively similar goods. Scholars and businesses have been raising their voice in a demand call for smell mark protection under trademark law, arguing that smell is just as important for identifying the origin-point of a product for a consumer as is the brand's logo or name or product shape. While the US courts have been liberal in granting smell mark registrations, EU courts have interpreted the “graphical representation” requirement under trademark law very strictly. Indian law, though not entirely closed on the prospect of smell mark protection, is inclined toward the EU position. After analyzing the current legal scenario, this article explores the more fundamental question as to the feasibility of smell marks, questioning their justification under the philosophical foundations of trademark law, the subjective associations of consumers with respect to smells, the difficulty in evidence analysis by courts in infringement suits and the apprehension relating to the functionality doctrine.