Economic Rationale for Extending Protection to Smell Marks

Abstract

In the traditional view of trademark law, a trademark serves its brand-identifying function. Consequently, marks which consumers actually use to identify the source of a product were allowed protection. James Hawes was the first commentator to assert that product scent merits trademark protection. This paper presents a study which discusses the appropriateness of trademark protection for fragrances. It is also argued that there exists some economic justification for allowing new forms of non-standard marks and in particular smell marks.

Keywords: smell marks, fragrances and non-standard marks

JEL Classification: K10, K20, K30