Kenyan businesses are ripe for smell, sound trademarks

A unique perfume smell distinguishes the brand from others. FILE PHOTO | NMG 

By CATHY MPUTHIA

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The services industry appeals to sight, sound, smell, taste and touch and brands depend on satisfying these senses. An example of brands that depend on the quality and distinctiveness of smell to sell are
perfumes.

In the advertising, electronics and entertainment industries, sound can be used to identify and distinguish brands.

For example, every time you switch on your computer it makes a set of sounds which are distinct to the brand.

Microsoft computers, for instance, have a welcome note every time you switch them on. The same happens with mobile phones.

Some phones welcome you with sounds or notes before a logo comes on the screen to distinguish the brand from competitors.

Some sounds and smells used to distinguish services and products are so distinct that they ought to be protected. A unique smell or sound distinguishes a brand and associates the service or product to a certain business.

A common example is TV stations. Each station has its own jingle which associates the sound with the station.

Some countries have laws which protect sounds and smells, associated with some businesses, through trademarks.

A sound trademark is a form of protection given to businesses that have distinct sounds used to identify their products, while a smell trademark is trademark protection given to businesses that have distinguished smells used to identify the products.

This protection means that no other person can use a similar sound or smell to identify their products. Is it time for Kenya to allow smell and sound trademarks?

It is possible under the law to get such trademarks. What is their benefit? Some argue that such regulations would help the market fight counterfeits.

For example, in the perfume industry a smell trademark would help brands to fight counterfeits. A sound trademark may help phone and electronic manufacturers to fight counterfeits as well.

In as much as a lot of benefit seems apparent from these types of trademarks, it is difficult to enforce them.

How do you determine if a sound or smell is distinct? How do you determine that a certain perfume has such a distinct smell that it ought to be protected and how do you determine the distinctiveness of sound?

What is a distinct sound? Additionally, it is not practical for any business to claim to have invented a sound or smell that is distinct to it.

Sound and smell trademarks are common in places like the USA.