The Legal Protection Of The Scent Trademark

Nowadays shrewd businessmen are not satisfied with the identifiable function of traditional trademarks, and they tend to spur customers to use different organs of their body to experience the products with the aim of unique and deep impression. The scent comes into our sight as commercial marks based on its natural characteristics and profound impression on people. Also there are lots of difficulties in the process of protection because of particularity of scent. The partial reason of the Trademark Law of our country has not protect scent at present is that the number of study is small, but more importantly, is that the standard of protection is high. The article begins with the features of scent and problems we need to face and the measures we are going to take.This paper is divided into five parts to discuss the legal protection of scent mark:First part interprets the meaning of scent mark. In order to reach the goal we need to know the basic meaning of scent mark and its features. The definition of scent mark is that one can distinguish his or her goods or services by smelling. Based on the definition we may conclude the features that other types of trademarks do not have. There are two features, one is invisible and the other is the difference of identification degree to customers. Traditional trademarks are visible, but scent is made of gaseous molecules which cannot be seen, and it can be connected to the goods or services. Also lack of description standard leads to the difference of identification in the same goods. The identification on the one hand means that customers may have different opinions about the same product, on the other hand, means that sometimes customers may cannot recognize it when the particularity of scent is weak and vice versa.Second part summarizes the essential of scent mark protection from three levels. Firstly, perfect the legislation for trademark. The Trademark Law is designed to protect trademark rights, ensure the quality of products and the interests of customers. We will benefit from the protection of scent mark, such as strengthen the regulation of trademark, meet the needs of eyesight disabled people and avoid the unfair conducts which may disturb the market order. Hence, Trademark Law should amplify the realm of protection and offer protection to scent mark. Secondly, the labor theory and the justice theory can be used to interpret the theoretical basis for scent mark. The core of labor theory is that one is entitled to the right when there is enough and good left. The reason why the most part of function of trademark is to protect the interest of trademark holder is that they provide labor and cost a lot in the process of generation, usage and popularization of scent mark. From the point of John Rawls’s justice theory, justice is a way that the main system distributes rights, duties and interests which come from social cooperation. Scent mark carries benefits to its producers, and it may not conform to the division of interests when others can also benefit from it without any costs. The essence of scent mark protection is to distribute rights according the activities of market participants. Thirdly, meeting the trend of international is essential. With the integration of global economy, different kinds of trademark regulations will lead to the imbalance of international trade. It is necessary to absorb advanced system of trademark protection from other countries and regions.The third part discusses the way how we protect scent mark and mentions the problems and suggestions in the process of protection. The content of scent protection contains of expanding the realm of protection, illuminating examination standard and problems of infringement. Among these, examination standard is most important. It requires distinctiveness, and scent samples with detailed written description and essential chemical formula, and graphic representation when they are voluntary to submit. We are aware of that distinctiveness and non-functionality is indispensable in trademark registration base on above content. Also, we can see lots of difficulties in practice:the possibility of scent depletion, the risk of scent confusion, the written description requirement and scent mark infringement.The fourth part specifies scent mark protection in the USA and the European Union, and summarizes the experiences which may perfect the trademark regulation in our country. The scent mark protection in the USA is advanced, and Celia Clarke takes scent mark into legal sight. The American Trademark Manual of Examining Procedures stipulates that a scent mark submitted for registration should meet the requirements of secondary meaning and non-functionality and detailed written description. As to the EU, it has a little different from the USA. Except for above-mentioned elements, graphic representation is needed, and the case of Sieckmann and Eden Sarl show us the importance of it. In our country we can take their regulation as reference. Considering the natural quality of scent mark, an effective examination standard can be used to promote the registration of scent mark.The last part is the conclusion of the paper. The discussion of legal protection of scent mark makes us learn the difficulties and hopes in perfecting trademark law. Surely, the paper has many deficiencies and needs to be completed. We are looking forward that more scholars will participate the study of scent mark protection and that our legal system of trademark is improving constantly.