A Moron In A Hurry

July 22, 2006

Name that Smell

Filed under: copyright, patents, trademark — nick @ 11:18 am

There has been lots of discussion on-line recently as to the IP status of scents.  Here is a quick round-up of the discussion and a technological development that could change everything.

It seems that the stink first wafted over the Atlantic due to recent decisions in France and the Netherlands that have recognized copyrights in perfumes. Counterfeit Chic was the first to report on this and the NYT followed (or here) up a few weeks later.

Info/Law thinks that a smell, more specifically a perfume, should be protected by patent law rather than copyright, but also notes the way that the French are much more protective of the moral rights of artists.

There’s also the question of trademarking a smell. As The Trademark Blog has pointed out, a Lituanian pizza parlor is arguing that the smell of their pizza has secondary meaning that affords it trademark protection:

“Opinion polls show that many consumers in Lithuania identify the pleasure of eating pizza with our trademark,” said Mindaugas Gumauskas, marketing director of the [pizza chain]. “This makes us believe that the scent of freshly baked pizza is a subject to our copyright.”

If the request is granted, it does not mean that other pizzerias would have to stop making the oven-baked dish, but only [the chain] would be able to make the claim that its food smells like freshly baked pizza.

Thus highlighting the potential peril of such an expansion of intellectual property rights.

Since trademark is all about brand protection, there are always people looking to protect nontraditional marks such as smells, tastes, feels, and etc. Here’s also a bit of history behind protecting nontraditional marks.

Generally speaking, smells have usually been denied protection because there is no good way to define one. For instance, registering a trademark requires a graphical representation of the mark, which is impossible for a smell, as the Court of First Instance of the EC ruled in Eden v. OHIM in denying trademark protection for the smell of strawberries.

A patent requires both that the subject being patented be new and non-obvious.  Using the smell of strawberries as an example, the scent is clearly neither new nor non-obvious; everyone knows and can recognize the smell of strawberries.  However, gene patents have become fairly commonplace since a case, Diamond v. Chakrabarty, 447 US 303(1980), first loosened the accepted ban on patenting living organisms.  There, SCOTUS said a man-made organism was patentable.  Gene and other bio patent seekers attempt to exploit this kind of loophole, with moderate success, through the drafting of narrow claims over extracted or purified biological elements.  Thus, while a regularly occurring gene as it occurs in nature might not be patentable, using mechanical processes to isolate it increases the odds that the lab version can be patentable.  Though, gene patents are hotly contested as being incompatible with the plain meaning of patent law, especially as more obvious biological phenomena are being patented.

So what do gene patents have to do with scents?  In 2004, Dr. Richard Axel and Linda Buck were awarded the Nobel Prize for scientifically describing how scents are processed by the nose.  It should be no surprise then that, based on this discovery, researchers are working on a machine that is able to record a smell and play it back.  If successful, not only does this mean that the smell of my mother’s one of a kind apple pie – using a mix of McIntosh and McCoun apples with cinnamon, nutmeg, and a dash of cardamom – could be recorded and coded (ie. fixed in tangible form), it could also be duplicated for all sorts of uses.

And once there’s money to be made the IP lawyers and suits will follow.  If you fix it, they will come.  Such a smell machine would break down many of the practical barriers in denying scents IP protection.  Copyright?  Here’s the olfactory code of my smell, much like a computer program.  Trademark?  With the ability to reproduce at will and package ingeniously, building secondary meaning is no longer so difficult or implausible.  Patent?  Like with gene patents, if I modify the smell of strawberries and can isolate it from its natural source, what’s stopping the USPTO from giving me a patent?  All of a sudden, what seems practical – scents are too ill-defined for IP protection – starts to smell a bit fishy.

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