Hey, Man, Smell my FingerTM

While the rest of you have been contemplating Harriet Miers’ excellent career decision and Scooter Libby’s pending trial, I’ve been mulling over a little news story that CNN carried in its “offbeat” news category. A court in the European Union had denied someone the right to trademark the smell of strawberries.

What caught my attention about the story was that the court did not say that you can’t trademark smells. What the court said is that there is no one smell of strawberries. The court implied that the petitioner might later trademark one particular smell arising from strawberries.

Just so you don’t think it’s never going to happen, the story goes on to say that some Dutch perfume company has registered the “fresh cut grass” smell, and uses it to make tennis balls smell good.

What the EU court actually said was, "The olfactory memory is probably the most reliable memory that humans posses. Consequently, economic operators have a clear interest in using olfactory signs to identify their goods." So the Dutch company was really olfactorily signing, sort of like what dogs do when they pee on trees, only they’re doing it on tennis balls, and they get exclusive use of their sign.

Of course if companies can do it because they have a clear interest to identify their goods, who’s to say a dog-owner can’t do it, having a clear interest to protect the clear interest of their charge? So someday a dog owner may, acting as a guardian, trademark his dog’s sign.

What I’m focusing in on here is this clear interest business. Hey, maybe I have a clear interest to buy tennis balls that haven’t been marked by some perfume company. Who’s going to protect my clear interest when the day comes that every tennis ball has to stink of some corporation or other?

And don’t think it will only be tennis balls. Sure, not everyone plays tennis. I don’t. But I wear T-shirts. We’ve already lived through an age in which all T-shirts had to have a message and/or a brand. Well, brace yourself, in the future all your T-shirts will also smell of a brand.

Oh, you’ll have choices. You won’t have to choose between “fresh cut grass” and “grass gone to seed.” There will also probably be smells like strawberry A, strawberry B, strawberry C, Old Spice, refried pinto beans, roasted garlic, Chanel No. 5, horse sweat, Tabasco, and white chocolate, depending on the company that’s sucking up your money.

It’s all a natural progression. It’s the clear interest of businesses to sell you what you thought you already had. And the courts give businesses all the rights that are in their clear interest, because they never consider that the rest of us may have legitimate competing interests, like an interest in being able to play tennis or get dressed without having our nostrils assaulted by inappropriate smells that we could whiff any other time, thank you.

It happens all the time. When was the last time you were about to purchase a snack or sweet beverage, and you checked the ingredients to be sure that the product contained corn syrup, because you just had to have corn syrup at that moment? I’ll bet never. You have never had a jones for corn syrup. So why is it in everything? Because somebody had a clear interest in putting it there and you weren’t consulted.

Somebody had a clear interest in branding the baseball stadium in this town. It happens that somebody was Safeco and they had the money to make their interest coincide with the city’s. So we have Safeco Field.

In the future we can look forward to a local sausage company using money to make their interest coincide with the interest of our Seattle Public Utilities. Then we will all be able to enjoy pepperoni-smelling water, straight from the tap.

The free market marches on! Smell its boots!