Abstract
When inquiring into if scent mark is protected under Trademark Act, it is necessary to review the theory of trademark by its nature. Instead of focusing on what types of marks could be protected, the point is whether a particular mark has distinctive character. Since the protection of non-visual perceptible sound marks was added to Trademark Act amended in 2003, non-visible scent marks, therefore, could be conform to the condition of distinctiveness. Scent itself is difficult to be represented graphically at the present, so how relevant consumers to differentiate one scent mark from another, and how to represent scent mark in written description and to deposit scent specimen have become important issues in trademark application practices. Undoubtedly, the requirement of graphical representation plays an important role in defining the scope of trademark right, provides information about marks for consumers or potential traders, and facilitates administrative management for the authorities. However, representation requirement should not be closely tailored to traditional visible marks. In other words, the combination of words description, scent specimen, or other technological instruments could be sufficient representation for scent marks. If the scent of a product is essential to the use or purpose of the article or if it affects the cost or quality of the article, it cannot serve as a trademark. However, the progressing of technology has changed consumers’ attitudes about functions of scent under particular environment, such as perfume. In that case, whether the registration of the scent of perfume is to be approved, competitive need in a relevant market should be taken into account. To sum up, extending the protected matters under Trademark Act to scent marks is to encourage enterprises to develop creative ideas which would be used to promote new products or services. By this way, the investment of efforts, money, time, or other resources in those ideas could be safeguarded by Trademark Act. In the end, I have brought up some ideas about “draft revised Trademark Act” and “Scent Mark Examination Manual” for public comment.