A legal viewpoint scent as trademark: Evidence from Indonesia and global approaches

Abstract This paper identifies and analyzes the legal issue of scent as a trademark. The identification results are used as legal material to formulate a regulatory framework for scent as a trademark. The research approach uses a statutory approach and a comparative approach. The object of research in this paper are legal materials in Indonesia, European Union, and the United States. A comparison of scent trademark laws in Indonesia, European Union and United States resulted in a legal framework to support scent as trademark can be accommodated in a country. The legal framework is in the form of updating the Trademark Law by changing the phrase “graphic representation” to only “representation”. Furthermore, provision of representation can be made using generally available technology and written descriptions based on nonfunctional objectives and detailed descriptions on the product can be added. Technically, several important things that are of concern in examining trademark scents include, trademark scents must be nonfunctional and distinctive, written description, attach a specimen, and use technology to avoid subjectivity. Indonesia must implement this legal framework in order to accommodate scent as trademark.