The Protection Of Scent Trademark On Trademark Law

With the innovation of business models and the constant development of science and technology,new forms of trademark are increasingly emerging which are closely linked with commercial activities,such as non-visual trademarks like sound and smell,etc.The modern trademark law also adaptively accepts some of them according to the trend.The third revision of the trademark laws in China has revised the requirements of visibility,including the protection of sound trademark.However,since the particularity of scent trademarks,and compared with other types of trademark,the protection is more difficult theoretically and practically.As a result,there is no consensus on these rules in the world.Under such an international environment,more and more countries and regions have begun to recognise the legal protection of scent mark.There are also huge advantages for operators in competition by creating scent marks for marketing.The lag in the field of trademark in China is out of tune,and the trademark law is still on the sidelines.Therefore,it is urgent to explore the areas related to the scent mark as a non-visible trademark and it will have a huge impact on promoting the protection process of new type trademarks.This paper makes full use of logical analysis method,comparative research method,case analysis method and literature analysis method,carries on multidimensional necessity analysis and legitimacy analysis,contrasts the development of foreign legislation and case practice,and puts forward some suggestions on the present research situation and national conditions.Firstly,this paper summarizes the research background of scent mark,analyzes the concept and characteristics,and on this basis,analyzes the plight of legal protection of scent mark,and clarifies the present situation in combination with realities.Then it analyzes the necessity and legitimacy of scent mark protection in various aspects of theory and reality.On the one hand,it analyzes the practical necessity from different kinds of aspects,such as commercial practice,the development of science and technology,the legislation and judicial practice of various countries.On the other hand,it analyzes the legitimacy of the theory from the support of the private property of trademark,the theoretical analysis of the essence of trademark,the hint of intellectual property policy and law and economics,and even the evidence of legal value justice,and the reflection of the practice and development of foreign countries and other angles to analyze the legitimacy of the theory,which is also the innovation of this paper.Next,it will be followed by an analysis of the legislation and practice of the protection of foreign scent marks,mainly to explore the theories and experience of the United States,the European Union and other related countries and regions,to explore a new way from the typical cases studies.Finally,it will turn back to the status quo of China's scent mark protection.So far,the protection of it is not clear in the sense of trademark law in China.Therefore,this paper expounds the basic situation of scent mark,and puts forward some suggestions for the protection of scent mark in our country.In order to find more suitable protection methods for the national and legal environment,policy administrative protection and legislative protection are two necessary ways.Scent trademark can not be separated from the guidance and standardization of the government,it can be started from the policy protection,but the legal protection is the most important one.When conducting trademark legislation to protect scent mark,its legal status within the protection scope of trademarks law have to be confirmed firstly.Secondly,we should carry out specific normative designs,including specific standards of significance and explicit non-functional standards,and the design of pre-registration in the confirmation procedure and the representation based on scent trait,the way of submission and the way of preservation.Especially,pre-registration will be added to the current procedural framework of trademark law,which will not only conform to the characteristics of scent trademark,but also will maintain the unity and stability of trademark law.It will promote the process of trademark law protection on scent mark by the recognition of the law and the normative design of the close personality.