Argentine Trademark Law protects both products and service marks. Under the Law, the ownership of a trade mark and the right to the exclusive use thereof are acquired by registration in accordance with Section 4 of Law 22,362 (trade mark law), which has adopted the attributive system. Consequently, if there is no registry of a trade mark, there is no right thereto.
However, legislation and court decisions have granted special protection to notorious trade marks that had not been previously registered in Argentina. A trade mark consists in any distinctive sign, symbol, or device affixed by a manufacturer to the goods he produces, or used in connection with the services rendered, with the purpose of identifying such goods or services in the market. Determining whether a trade mark applies for trade mark protection depends upon its distinctive capability. Before registration, the trade mark is subject to an examination carried out by the Trademark Office examiners.
The Argentine trade mark law does not expressly refer to the registration of so-called smell trade marks (certain fragrances, smells or scents). If a product's packaging includes a distinctive scent, the owner will logically try to obtain the exclusive right to that scent. Naturally, the appropriate way of obtaining such exclusivity is by means of the trade mark registration of such scent. Since the Argentine trade mark law adopts a wide criterion when referring to possible distinctive signs, many authors support the registration of smell signs.
On January 30 2009, the Argentine Trademark Office for the first time registered a smell mark to be applied to the container of a product in Argentina. They were recorded as: 2.115.161/ 62/63/64/65 to 2.115.166 issued as numbers 2.270.653/54/55/56 to 2.270.657, respectively. The owner of these trade marks is L'Oreal, and they are all registered in International Class 3. They were granted by Resolution M Nº 131/09. In all cases, they comprise a "... Fragrance of... (different fruits in each case)... applied to the Containers ...".
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Juan Martín Aulmann and Daniel R Zuccherino |
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Obligado & Cia
Paraguay 610, 17th Floor
C1057AAH, Buenos Aires
Argentina
Tel: +54 11 4114 1100
Fax: +54 11 4311 5675
