We know that the registration of a scent as a trademark is quite rare, given that the smell of a fragrance is functional aspect of the product. Protection for the shape of a perfume bottle, on the other hand, is not unheard of, and the status of such protection is currently being considered in a case before the U.S. Trademark Trial and Appeal Board, the neutral body that functions like a court for trademark matters at the U.S. Patent and Trademark Office. While the appearance of a fragrance bottle is a relatively commonplace registration in terms of design patent protection, L'Oreal is seeking trademark protection, trade dress protection, in particular, and the issue is not exactly clear cut.
The cosmetics giant, which holds the licenses for YSL, Victor & Rolf, Maison Martin Margiela, Diesel, and Kiehl's, among others filed an application with the USPTO to register the design for one of its Giorgio Armani fragrances, Si. According to the application, the trade dress at issue is:
A clear rectangular-shaped bottle with a pale rose tinted middle portion and the wording "SÌ" appearing in black, stylized form with a grave accent above the "i." The cap of the bottle is a black, elongated pebble shape with a silver ring on its base. The color white represents background only and is not claimed as a feature of the mark.
The action at hand stems from the USPTO's two-time denial to register the mark, the most recent of which came this past May. In connection with the denial, the trademark examiner wrote: "Internet evidence shows that this rectangular bottle shape is commonly use by others in applicant's field, namely, the fragrance and personal goods industry. Because consumers have been accustomed to seeing this bottle shape used by others in the marketplace, the consumer will not perceive it as a trademark that identifies the source of only the one individual's goods." The decision, which L'Oreal has since appealed, further held that L'Oreal could register its mark but on the condition that it does not claim rights to the shape of the bottle itself.
This sheds light on the point of trademark law, which is to prevent consumer confusion in there marketplace by allowing trademarks to serve as identifiers of source. For instance, if you see the double-"C" logo on a purse, you know its a Chanel bag. Hence, the denial of applications for trademarks that too similar to existing ones, and apparently, this includes the shape of fragrance bottles. More to come on this …