The Proustian Predicament in Trademark Law: Charting the Legal Recognition of Olfactory Marks

With the rise of multi-sensory branding, trademarks have expanded beyond the graphical and visual requirement to encompass olfaction, pushing the traditional limits of trademark doctrine. The present study assesses the evolving status of olfactory trademarks by focusing on their unique position as sensory-based marks. The study maps the regulatory landscape and evidentiary threshold for olfactory trademarks in the United States, European Union and Australia. These foundations are then juxtaposed to the Indian trademark law to conceptualise a workable framework for accommodating olfactory trademarks within the Trade Marks Act, 1999. The absence of a precedent in the Indian context underscores conservatism surrounding olfactory marks. The authors propose a hybrid framework for incorporating olfactory trademarks into the Trade Marks Act, 1999, combining Australia’s statutory model with the evidentiary standards set by the US Courts and the USPTO.