The future of IP Law: Tastes & Smells?

Unlike most IP lawyers, or most people for that matter, I'm a rabid reader of Slashdot. For those of you unfamiliar with Slashdot, it bills itself as "News for Nerds. Stuff that Matters." I guess that makes me a nerd, but I prefer the term "computer geek."

Anyways, there was an interesting discussion on Slashdot about the future of IP Law, and whether it will extend to cover smells and tastes. Here is the entire discussion. FYI, I post as the user "lothar97." Here's an overview.

Futurist Thomas Frey wrote an article posted on the Da Vinci Institute's website entitled Intellectual Property’s Next Big Wave: Taste & Smell Patents. This is a trademark blog, so I don't normally talk about patents. However, people confuse patents, trademarks & copyrights, including the article's author. He mentions how there are "many" sound trademarks, and that there are a few smell trademarks- so patents must be close behind. Here is what I wrote in response to this:

1. In one sentence Frey refers to trademarks of smells, and then in the next sentence wonders if smell patents can be close behind. For the last f'ing time, patents != trademarks.

Patent: protects an invention (but not an idea itself)
Trademark: identifies a source of goods or services (usually through a name or logo)

Patents and trademark are quite different, so please stop confusing them- especially people writing scholarly articles.

2. There are not "many" color or sound trademarks. There are very few sound trademarks- the NBC chime comes to mind, and Harley Davidson recently lost their attempt to trademark the Harley engine sound. As for colors, you can get your trademark in a specific color (to distinguish it from similar marks, but there are very few color only trademarks. The only one I know of is Orange, which gets the color orange for cell phones. Using colors for trademarks is more of a European thing, as the US only within the last year began accepting color drawings in trademark applications.

3. I think Frey is going too far. Sure patent attorneys like to stretch the limits of the law for their clients (like all attorneys), but there needs to be something codified in the law to allow patenting of a smell. Currently a smell by itself does not reach the minimum definition of patentable subject matter. To have something that is patentable, you need a physical invention that does something useful, and I don't see how a smell in itself provides this usefulness. I can see smell as part of an invention, such as a fire alarm system or adding smells to movies. Throwing out wild hypotheticals, I guess you could patent a smell that makes the person inhaling it do a specific reaction- but then that raises ethical questions that the patent office might use as a rejection.

There is something called a design patent, which protects the ornamental features of an invention (like the propeller people put on their trailer hitches). With a design patent, you do not have claim any useful features, you just show drawings. This could logically be extended to smells, but you need to have a change in the laws.

Usually when I pull out the IAAL on Slashdot (I Am A Lawyer), I get chewed out. This time, I didn't much grumbling with lawyer jokes and the like. Some people agreed with me, and gave some more interesting information.

It turns out that there are starting to be more smell trademarks, and it looks like Europe is leading the charge. So says The Registration of Smell Trademarks in Europe. I read through the article, and there are several attempts to register smells. European law and US law are obviously different. There's an interesting tidbit in the cited article. To register any trademark in the EU, you need a graphical representation. You have to show the mark, and describe it if need be (such as the case for the color orange for cell phones, you just describe the color). It's quite difficult to graphically represent a smell (if you know how, please let me know!) The article mentions describing "rose scent for tyres [UK]," which was allowed to become a trademark. Chanel No. 5 tried to get a smell trademark for:

“scent of aldehydic-floral fragrance product, with an aldehydic top note from aldehydes, bergamont, lemon and neroli; an elegant floral middle note, from jasmine, rose, lily of the valley, orris and ylang-ylang; and a sensual feminine note from sandal, cedar, vanilla, amber, civet and musk. The scent is also being known by the written brand name No 5."

That was not clear enough, and their mark was rejected. Contrasting this with the rose-scented tires, everyone knows what a rose smells like. No one can readily identify the scent of the combined various ingredients list that Chanel provided- however I imagine most people who have smelled Chanel No. 5 can identify it in the future.

Contrasting two more cases, the article also mentioned that "the strong smell of bitter beer applied to flights for darts" [UK] was allowed. I guess most people know what beer smells like, and I guess most people in the UK know what a bitter beer smells like. This might not be the case in the US. A German outfit tried to get “smell of fresh cut grass” for tennis balls, but it was found that people associate different smells with this. I guess cut grass smell varies by different types of grass, fresh grass, dry grass, etc.

My research indicates that in the US you can get smell trademarks, but I do not have any specific ones right now. I'll dig around more and find some, so come back soon.