Olfactory Marks protection & Trade Dress– MEXICO

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Francisco Capetillo Traeger   

For many years, in Mexico trade dress has been protected as trademark in different ways, but the former Industrial Property Law was not very specific and/or inclusive, so the protection was limited to the design marks, the combination of colors and/or shapes, although the law particularly established protection for three-dimensional shapes of wrappers, packages, containers and for the shape or presentation of products.

The new Industrial Property Law (Federal Law for the Protection of Industrial Property), in force since November 5, 2020, expressly recognizes the protection of trade dress as well as the protection of sounds and smells (olfactory marks) for the first time. These non-traditional trademarks, which are not just “visible”, are very innovative and can add a stronger value to the products and services. 

As of May 31, 2021, the Mexican Institute of Industrial Property (IMPI) has received 113 olfactory trademark applications, this is meaningful because the applicants are not just looking to obtain protection of distinctive smells as such, but also, in some cases, smells as part of a trade dress.

As an example, we may think about the restaurant chains, whose particular smell is perceived when one passes by outside the establishment, or when entering it. There is a particular and distinctive smell that identifies that specific restaurant or chain and which is distinguished by the consumers. The same happens with some clothing stores, cosmetic and beauty shops, candle shops, coffee shops, and even with some automobile dealerships whose particular smell distinguishes them from the others.

Therefore, if your company offers products and/or services that should be distinguished in addition to the brand of smell or sound, it is very important to consider protecting them, since they will add an important value to the commercial image of your business. 

Be innovative and protect those important assets.