The protection of olfactory marks under international law and law of some countries

MINISTRY OF EDUCATION AND TRAINING HO CHI MINH CITY UNIVERSITY OF LAW -*** -THE MANAGING BOARD OF SPECIAL TRAINING PROGRAMS NGUYỄN NHẬT THẢO THE PROTECTION OF OLFACTORY MARKS UNDER INTERNATIONAL LAW AND LAW OF SOME COUNTRIES BACHELOR OF LAW – GRADUATION THESIS INTERNATIONAL LAW FACULTY Academic year: 2013 - 2017 HO CHI MINH CITY 2017 MINISTRY OF EDUCATION AND TRAINING HO CHI MINH CITY UNIVERSITY OF LAW -*** -THE MANAGING BOARD OF SPECIAL TRAINING PROGRAMS NGUYỄN NHẬT THẢO THE PROTECTION OF OLFACTORY MARKS UNDER INTERNATIONAL LAW AND LAW OF SOME COUNTRIES BACHELOR OF LAW – GRADUATION THESIS INTERNATIONAL LAW FACULTY Academic year: 2013 - 2017 Supervisor : Ph.D LÊ THỊ NAM GIANG Student : NGUYỄN NHẬT THẢO Student code : 1353801015251 Class : CLC 38B HO CHI MINH CITY 2017 ACKNOWLEDGEMENT Firstly, I am highly grateful for the Ho Chi Minh City University of Law because giving me a gorgeous opportunity to cultivate in a professional environment Secondly, I would like to send the respectful thank for the wholehearted guidance and inspiration from my supervisor – Lecturer Le Thi Nam Giang in all the accomplishment of the thesis Without her enthusiastic support, I could not have the productive work and innovative ideas to perform these contents Thirdly, I would also like to express my appreciation to my family and my friends who totally encouraged me during the process of completing the project In the process of researching and studying, I would like to tacitly acknowledge my own scholastic limitations in the writing of this thesis Hence, my research work might be having some shortcomings and mistakes in the implementation process, thus, I will try my best to compensate and overcome in the following researches Nguyen Nhat Thao Ho Chi Minh City University of Law, 07/2017 DECLARATION I hereby declare that my thesis is my original work, which has been written by me under the guidance of my supervisor Where other sources of information have been used, they are duly acknowledged in the text and bibliography I am responsible for all of the infringement on copyrights of the third parties that may result Ho Chi Minh City, July 18th, 2017 Nguyen Nhat Thao ABBREVIATIONS CJEU Court of Justice of the European Union (including its legal predecessor European Court of Justice) CTM Community Trade Mark CTMR Community Trademark Regulation EU The European Union EUIPO European Union Intellectual Property Office Member States Member States of the European Union OHIM Office for Harmonization in the Internal Market TMD Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks TMEP Trademark Manual of Examining Procedure TRIPs Agreement on Trade-Related Aspects of Intellectual Property Rights of 1994 TTAB Trademark Trial and Appeal Board of the USPTO UK The United Kingdom of Great Britain and Northern Ireland US The United States of America USPTO United States Patent and Trademark Office WIPO World Intellectual Property Organization WTO World Trade Organization TABLE OF CONTENTS INTRODUCTION 1 The necessity of doing research The literature review of research 2.1 In the international law and law of some countries 2.2 In Vietnam 3 Purpose of the thesis Delimitation of reseaching 5 Methodology 6 Structure of thesis CHAPTER OVERVIEW ABOUT OLFACTORY MARKS 1.1 Definition of olfactory marks 1.2 Protection background 14 1.2.1 International law 14 1.2.2 Law of some countries 16 1.2.3 Evaluating protection background and the implications for Vietnam 21 1.3 Features of protecting olfactory marks 24 1.3.1 Evaluating the possibility of protection 24 1.3.2 The perception of consumers about olfactory marks 26 1.3.3 The territoriality of protecting olfactory marks 27 CONCLUSION OF CHAPTER 29 CHAPTER CONDITIONS FOR PROTECTING OLFACTORY MARKS AND EXCLUDED OBJECTS FROM BEING PROTECTED 30 2.1 Conditions for protecting olfactory marks 30 2.1.1 Overview about conditions for protecting olfactory marks under international law and law of some countries 30 2.1.2 2.2 Analyzing the necessary conditions for protecting olfactory marks 34 The excluded objects from being protected as olfactory marks 48 CONCLUSION OF CHAPTER 51 GENERAL CONCLUSION 52 BIBLIOGRAPHY 54 INTRODUCTION The necessity of doing research Nowaday, trademarks play essential factors in positioning of a commodity product as well as building a reputation of the businessmans; therefore, they always try to find novel solutions to develop their trademarks in a unique and creative way, thus, building up their products or services in the mind of customers via these trademarks In the context of traditional marks such as words, symbols are almost plethoric, the old types of trademarks gradually lose the ability to impress consumers1 To find a potential pathway, companies now know how to connect their trademarks to consumers through human senses, not only visible but also non-visible elements likely smell, and, using them as trademarks According to some relevant researchers, smell is a potential source because the human senses are very sensitive to these objects; in addtion, they are highly distinguishable because each type has its own characteristics, for examples: you can not confuse between durian and jackfruit although they have the similar shape, thanks for their smell Thus, the tendency of using non-traditional marks in general and olfactory marks in particular will be very interesting in the future At present, some of the provisions of international law and national law explicitly recognize and protect the new type of trademark, typically the law of the United States and Australia These countries have established regulatory systems for the protection of non-traditional marks, including olfactory marks, with a number of recognized and protected applications However, some countries still refuse recognizing this trend because of the difficulties in identifying the olfactory marks, the assessment of infringement Brinks Gilson & Lione, Funky trademark trend continues as Procter & Gamble files trademark request for Old Spice whistle, 2014, available at: http://www.brinksgilson.com/funky-trademark-trend-continues-procter-gamblefiles-trademark-request-for, access on May 28th, 2017 Specifically, in the case of Vietnam, Intellectual Property regulations in our country currently only accept the protection of tangible trademarks as per: words, symbols or combinations thereof, etc.; furthermore, most of consumers in our country are still unfamiliar with olfactory marks In the context of international economic integration today, it is essential that Vietnam Intellectual Property law considers expanding the objects of protection to non-traditional marks This innovative content, on the one hand, encourages trademark's owners to create and apply new trend of trademarks, while also creating consistency in Vietnam Intellectual Property law and international trend related to the protection of trademarks The author finds that the protection of non-traditional marks will be inevitable in the future, not just on Vietnam's accession to the TPP or not The author believes that this topic is highly applicable in the future when olfactory marks will be developed and also responds to the current requirements and is a useful document for people wishing to the research about the marks The literature review of research 2.1 In the international law and law of some countries Nowaday, researching about olfactory marks are growing up in the world, especially in US, India, China, Japan, Singapore and Australia In the process of studying the thesis, the author found that there were a lot of documents about the new type of mark had been established, hereby are some relevant noteworthy legal materials: (i) Wipo Magazine, Smell, Sound and Taste – Getting a Sense of Non-traditional Trademarks, World Intellectual Property Organization, 2009 (ii) Roberto Carapeto, A Reflection About the Introduction of Non-traditional Trademarks, available at: http://www.waseda.jp/folaw/icl/assets/uploads/2016/02/c35688e10d1c61201172 065546b98301.pdf, access on July 14th 2017 (iii) Margaret A Boulware, Emerging Protection for Non-traditional Trademarks: Product Packaging and Design, Baker & McKenzie LLP, available at: http://www.waseda.jp/folaw/icl/assets/uploads/2016/02/c35688e10d1c61201172 065546b98301.pdf, access on July 14th 2017 (iv) APAA, Protection of Non-traditional Trademarks Singapore: Trademark Committee, available at: http://www.apaaonline.org/pdf/APAA_63rd_council_meeting/TrademarksCom mitteeReports2014/Singapore%20Trademarks%20Committee%20SPECIAL_T OPIC%202014.pdf, access on July 14th 2017 (v) Kristen E Knauf, Shades of Gray: The Functionality Doctrine and Why Trademark Protection Should Not Be Extended to University Color Schemes, Marquette Sports Law Review, 2010 From the author's perspective, these documents primarily address the notion of non-traditional marks including olfactory marks, specifically related to the potential of developing the marks, conditions for protecting of the marks and the actual enforcement of protection in certain countries in the world as well as the differences among the laws of the countries about tthe above issues At the same time, these documents also point to the difficulties and challenges that the countries have to face in finalizing the legal framework for the protection of olfactory marks However, within the scope of the author's research, no topic has specifically addressed the recommendations of protecting the olfactory marks for the current situation in Vietnam 2.2 In Vietnam Currently, the number of in-depth articles on olfactory marks in Vietnam are still limited Within the scope of researching and studying of the author, a number of papers by local authors focusing on this mark have been found, including: smells have been widely used in daily life, smells are incapable of distinctiveness or expressing graphic representation 89 For the second case, olfactory marks are excluded in this content including the marks which are intrinsically restricted or prohibited in practice In particular, in accordance with the Paris Convention enacting certain restrictions on the registrable marks specified in Article 6ter (1) as “(a) The countries of the Union agree to refuse or to invalidate the registration, and to prohibit by appropriate measures the use, without authorization by the competent authorities, either as trademarks or as elements of trademarks, of armorial bearings, flags, and other State emblems, of the countries of the Union, official signs and hallmarks indicating control and warranty adopted by them, and any imitation from a heraldic point of view […]” However, the provisions of the Convention are very difficult to apply in case of abstract marks, such as olfactory marks, because the regulation of exclusion likely “armorial bearings, flags, and other State emblems, of the countries of the Union, official signs and hallmarks indicating control and warranty adopted by them, and any imitation from a heraldic point of view”, actually are the visible marks On the other hand, the international laws in general not have detail provisions about the excluded olfactory marks In the process of referencing materials of expert studies relating to the issue, author has drawn up and shows the list of smells that, in the opinion of the author, they need to be excluded from being recognized and protected as trademarks For the first case is the smells that include pernicious component as per chlorine trifluoride (CIF3) or addictive substances, etc., these smells harm to the physique of people, thus, the protection of them has to be directly banned Secondly, the excluded smells which include toxic impurities such as mercury, dioxin, etc threat human health when using in a long term for example of causing cancer or mutation diseases Last but not least, the 89 See more at Section 2.2 49 smells are offensive to the customers likely stink, stench, and the others, although these smells may not contain harmful agents that affect to human’s health, they are considered coarse and should not be protected as trademarks 50 CONCLUSION OF CHAPTER In conclusion, this Chapter are going to analyze the conditions for protecting olfactory mark in practice and point out the excluded object from being protected Based on doing the reseaching about provisions of international law and law of some typical countries, Section 2.1 of the Chapter enumerates the conditions that need to be satisfied for the protection of olfactory mark, including: (i) The admissibility of smells as signs; (ii) The ability of distinguishing products; and (iii) Capability of being graphically represented; In addition, the Chapter also deals with cases of exclusion from protection, which are the scent, smell or odor that direct or indirect affect to human’s health Since then, Chapter has clearly identified the objects of olfactory marks to be protected, this is considered as an important factor in the recognition of the protection and enforcement of olfactory marks in practical application 51 GENERAL CONCLUSION The thesis "The protection of olfactory marks under international law and law of some countries” focuses on analyzing the legal issues relating to the protection of olfactory marks under international law and law of some countries In the content of Chapter 1, the thesis raises fundamental intellection of olfactory marks, which includes the origin, definition, protecting background and features of protecting the marks Henceforward, the Chapter supplies a comprehensive overview about the essences of the olfactory marks, in which it should be noted that there is still not any uniform regulations on the protection of olfactory marks in the world, some countries not recognize the protection of the marks because of the different protectionist views and difficulties related to defining olfactory marks, solving the barriers of assessing the distinctiveness, visibility of this new kind of marks, especial is the infringement evaluation Based on the analysis of Chapter 1, Chapter is going to discuss about protection conditions and excluded objects from protection, this Chapter focuses on in-depth analysis of legal aspects of condition for protecting the marks in accordance with referencing to international law, law of the typical nations as well as theoretical foundations from Chapter Although, until now, olfactory marks have not received a widespread recognition due to its novel features and legal obstacle of determining distinctiveness, the ability of visual representation or the issue of enforcing the protection in practice, through the evidence in the thesis, it can be seen that olfactory marks are get on with four essential functions, as per: identifies the source or origin; links the mark, the product and the 52 proprietor; guarantees quality and advertises the product90, therefore, it is more likely to be accepted broadly in the future As a consequence, the trend of protecting olfactory marks will affect to many countries and being dominant to the ability of accepting the olfactory marks protection of Vietnam Currently, Vietnam has not yet acknowledged the protection of non-traditional marks in general and olfactory marks in particular, in the context of the development of the new type of marks and tendency in Vietnam, it is necessary to answer two important legal questions about whether to protect the new type of marks in Vietnam and, if so, which provisions should be considered when setting out the regulations on protecting olfactory marks under Vietnam's circumstances In conclusion, with the distinctive features, olfactory marks have a high potential of economic assets and leave on consumers higher degree of commercial impression, the protection of the olfactory marks will pose great challenges to the legislation in the matter of harmonisation of the trademark registration, conditions for being protecting and examination the procedures of enforcing the protection in practice, especially is the interpretation of graphical representation, which is one of major factors governed the ability of being protected of the marks It is very necessary to develop a uniform policy for solving the issues and WIPO plays a very important role in the introduction of guidelines, whereby each country's legislation can be provided effective regulations to implement provisions of the law on intellectual property aspects 90 Lisa P Lukose, Non-traditional trademarks: A critique, Journal of the Indian Law Institute, Vol 57: 2, 2015, available at: http://14.139.60.114:8080/jspui/bitstream/123456789/34744/1/011_Non- Traditional%20Trademarks%20a%20Criique%20%28197-215%29.pdf, access on June 12th, 2017 53 BIBLIOGRAPHY I Legal documents Legal documents of the Socialist Republic of Vietnam Law on Intellectual property right No 50/2005/QH11 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