" (Matheson, 2003)
There is a question regarding 'scent depletion' as noted in the work of Matheson who states: "The overall number of scents of a favorable character which are intelligible to the majority of the public through a straightforward written description and suitable for product identification are, presumably, rather limited. According to this theory, the registration and/or protection of specific scents should be prohibited to avoid depletion of the supply of scents available for use by others." (2003) This same argument is one that has been reviewed and recently dismissed by the Supreme Court "...relative to color marks as relying upon an occasional problem to justify a blanket prohibition." (Matheson, 2003)
Matheson believes that this concerns will hold more sway in the context of olfactory marks because "...Pending the adoption of a widely accepted method for the graphic representation of scent, it may be the case that the number of scents available to potential trademark owners is quite restricted. The domain name quandary has aptly demonstrated the problems generated for trademark owners where insufficient options are available to "go around." At first glance, in the scent context, it seems that the functionality doctrine should offer a method to retrieve for wider use those fragrances that have evolved over time into product features necessary for competition." (2003)
Sensory evaluation is according to Matheson "highly subjective" since the "perceptions of scent may vary widely according to the concentration, purity, quantity, age and temperature of the olfactant and the sensitivity, sophistication, skill and health of the receptor" or the customer. This subjectivity according to Matheson "explains the growing success of personalized aromatherapy. It answers how some people identify scents of vanilla, anise, apple, cranberry, oak, and pepper in a single sniff of wine and others perceive just... wine. Arguably the issue of subjectivity should present no greater quandary for olfactory marks than do trademarks generally. The legal standards used to evaluate the similarity of words or colors are no less applicable to determinations based upon gradations of scent. Only experience (and case precedent) is lacking." (Matheson, 2003)
There is also a problem noted by Matheson in relation to functionality in applying trademarks to scents and specifically since scents "...which are neither an "inherent attribute" nor a "natural characteristic" of a product and serve no utilitarian function other than as a source identifier are protectable as trademarks. While determinations of functionality may appear straightforward in evaluating products like perfume, home fragrance products, and household cleaners, these lines of demarcation are quick to blur." (2003) Matheson questions the application of fragrances to items such as paper towels and toilet papers and asks whether these fragrances would fall in terms of trademarks. Also, would this increase prices quite liberally?
The work of Carsten Schaal (2003) entitled: "The Registration of Smell Trademarks in Europe: Another EU Harmonization Challenge" states that the "first step to harmonization of the EU Marketing concerning trade marks was laid down on December 21st, 1998 with the First Council Directive 89/104/EEC to approximate the laws of the Member States relating to trade marks. Another step was the Community Trade Marks Regulation (CTMR) EC/40/94 of December 20th 1993, which declared under its Art. 2 the establishment of the 'Office for Harmonisation in the Internal Market' (OHIM) for trade marks and designs. Accordingly, the Member States implemented the Directive 89/104 EEC into their national laws, e.g. The United Kingdom (UK) in the Trade Marks Act 1994 and Germany in the 'Markengesetz' (MarkenG) of 1995." (Schaal, 2003) the Directive, the Regulation and the amended State Laws, took into consideration "...took into consideration the new trade mark forms such as sounds, signs and smells..." however, there is a major problem which "...endures" and that is "...the requirement of 'graphical representation' of the mark, which can be found in each one of those statutes." (Schaal, 2003)
Schaal examines the requirement of graphical representation and states that ultimately, the registration of an olfactory trade mark has been only rarely successful. Schaal (2003) states that the requirement of a 'graphical representation' of a trademark in order that it be registered was "...first mentioned in Art. 2 of the 89/104/EEC Directive, which reads as follows: "A trade mark consists of any sign capable of being represented graphically, particularly words, including personal names, designs, letters, numerals, the shape of goods or of their packaging, provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings." (Schaal, 2003) Schaal states that there are practical reasons for the requirement that the trademark be recorded only...
" (Information Society and Media, 2005) f. The eContent Programme and the eTen Programme The 100 million dollar eContent Programme (2001-2005) focuses on encouraging growth and development of tie European digital content industry. This programme funds projects with short time-to-market and as well experiments with new models in business and partnerships through use of technology that is presently available. The programme's stated 'main thrust' is to; Improve access to an expand the
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