As a relatively new intellectual property model, the examination of olfactory marks presents a series of challenges for the authorities in charge of their registration and protection in Colombia. To date, the Superintendency of Industry and Commerce (SIC), which is the entity in charge of carrying out this process, has presented some shortcomings in its ability to adequately evaluate olfactory marks and to date Colombia has not granted any.
One of the main shortcomings of the SIC is the lack of specialized knowledge and technical resources to carry out the evaluation of olfactory marks. Unlike other types of marks, olfactory marks require a sensory evaluation process, which, since it does not exist, must use current tools with compliance with the distinctiveness factors, perceptibility through smell and unequivocal graphics with that the smell can be represented.
It corresponds to the applicant for the olfactory mark to provide the sensory representations and it will be an opponent who, with the same parameter, compares the mark requested for registration with the mark that he intends to object to in dispute, while the SIC must participate only as guarantor of the comparison to take a decision.
Another shortcoming is the lack of a clear methodology to evaluate olfactory marks. Some countries have developed specific methodologies to evaluate scent marks and have defined clear criteria to determine whether a trademark meets the registration requirements of a scent mark. In Colombia, on the other hand, there is no clear methodology that is applied uniformly to evaluate olfactory marks, which has led to inconsistent and arbitrary decisions.
In addition, the SIC does not have a centralized registry of scent marks. This makes it difficult to identify scent marks that may be similar or identical to those already registered. Consequently, the intellectual property rights associated with scent marks may not be fully guaranteed, which may harm the owners of these marks.
In summary, the SIC faces several difficulties when evaluating olfactory marks, including the need for specialized technical knowledge and resources, the implementation of a clear evaluation methodology, and a centralized registration system for olfactory marks. By addressing these shortcomings, the entity will be able to improve the protection of intellectual property rights associated with olfactory brands and guarantee greater legal certainty to their owners.