The Study Of The Legal Protection On Scent Trademark

With the development of science and technology and the application of new business model, the trademark which is used to distinguish the differences of goods or services, has also developed from traditional visual ones to new types, such as the senses with sound, olfaction, taste and so on. And scent trademark is one of them. Scent trademark is not protected under Chinese Trademark Act at present. However, as it is in accordance with the connotation of trademark, scent trademark is one of trademark, so it should be protected by law. More and more countries and regions begin to accept the legal protection on scent trademark, and our enterprises want to use scent trademark to stand out from the traditional visual trademark, so it is important to do the research of legal protection on scent trademark.This paper is divided into five parts except Introduction and Conclusion.The first part summarizes the theoretical basis of scent trademark. The scent trademark is unfamiliar to the readers, so it is necessary to define the scent trademark. This part includes the meaning, the classification and the characteristics of scent trademark. Meanwhile, it describes the attitudes towards scent trademark protection in existing legal system.The second part to the fourth part is to discuss the three most important problems of legal protection on the scent trademark. It includes the distinctiveness, the non-functionality, and the description.The second part focuses on the distinctiveness of scent trademark. First, it presents the general principle of the distinctiveness of trademark, then it analyses whether scent trademark has the distinctiveness and discusses the standard of distinctiveness of scent trademark.The third part focuses on the non-functionality of scent trademark. It presents the general principle of the non-functionality, and then summarizes the standard of the non-functionality of scent trademark through analyzing the two typical cases.The fourth part focuses on the description of scent trademark. After comparing between the descriptions of scent trademark in America, European Union, and Australia, it teases the forms of the description of scent trademark.On the basis of the above parts, the fifth part puts forward several proposals to establish the legal protection on the scent trademark in China. It offers proposals on the legal status of scent trademark, the substantial elements and the procedural elements.