To all TRADEMARK LAWYERS in the USA ?
Thursday, January 15th, 2009 at
10:53 am
anairisramirezmtz asked:
I have two important questions the first one: Can a smell be protected as a trademark in the USA? which is the legal ground that would allow this?
I have two important questions the first one: Can a smell be protected as a trademark in the USA? which is the legal ground that would allow this?
Second question: the Electronic System for Trademark Trials and Appeals technically allows trials to be undertaken through the internet or do you have to be physically present at a certain point in the process?
Tagged with: Electronic System • Trademark Lawyers • Trademark Usa
Filed under: Lawyer FAQ
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You probably won’t be able to find an IP/Patent attorney (the ones who do trademarks) that will answer for free — but if you do then great!
The smell may not be protected, but a fragrance and the ingredients in a specific combination that make the smell can. (think perfumes)
I am not sure on the rest — you will probably have to ask an IP/Patent attorney.
Sorry to disappoint the first answerer, but some of us do end up in here. I’m not a lawyer, but an information specialist for trademarks.
A mark that identifies a scent or fragrance may be registrable in certain circumstances. What those circumstances are can be defined by the trademark examiner and you might just have to take your chances.
By the way, I have been unable to locate a successful application of this rule in the United States. In Europe (Community Trademarks), an example would be: “The Smell of Fresh Cut Grass” (for Tennis Balls).
As for the second question, these are not criminal proceedings and the U.S. Patent Office does not expect you to be present. Only if the case was to exit the Trademark System and enter the civil courts would a physical presence be required, but even that could be covered by your attorney.
As always, it is recommended you use a qualified trademark attorney before you proceed.