Trademarking Nature

Science is an awesome thing, by which I am continually amazed. Perhaps not surprisingly, it’s the natural sciences I’m most drawn to, and what we learn from nature is sometimes beyond imaginable.   In fact, I just found out about a human who has redefined what it means to be clinically dead. This dying man’s heart was replaced by twin turbines, effectively rendering him still alive, but without a heartbeat or pulse.   I often assess each of these amazing technologies on the basis of ethics. I don’t often go deeply into the theoretical ethics (I get a headache reading too much Foucault and Kant), but I do like to think of the basic ethical ramifications (either positive or not) as to how it affects the environment and future generations.

One scientific advancement that’s been at the fore of the ethical debate is patenting DNA. The implications of privatizing genomic DNA would ostensibly have rendered a huge potential windfall for private companies that would have patented the natural DNA. Thankfully (or perhaps not to some), the US Supreme Court struck that down in 2013. Yet, within the writing, there are some other “gray” areas whereby if the genetic DNA is altered, then that can be patented, as can certain methods of genetic disease screening.

But that brings up another point: is there a line we should not cross in terms of “owning” or “patenting”, “copyrighting”, or “trademarking” nature? A few years ago, I learned of a movement (not sure if it’s still growing or become stagnant) whereby any company that uses nature for its profitable gain, should then give back to the natural entity from which it is benefiting. There are few examples, but I’d like to think this is a growing trend. As a positive example, General Mills’ Honey Nut Cheerios uses a bee mascot to sell its cereal, yet as a result of collapsing hives, the company is starting to work with farms and the Xerces Society.

In another sense, some sounds and smells are being increasingly trademarked. Harley Davidson famously tried to patent its loud exhaust sputter, which ended in corporate legal fatigue where Harley Davidson pulled out of the battle and dropped its case.   But what if a company tried to trademark sounds such as a certain bird chirp, or the sound of the rushing wind? Technically, the main idea that needs to be conveyed is that the sound is inextricably linked with a company’s product. That is to say, as soon as a consumer hears the sound, it is immediately linked to that particular product – much like Pavlov’s famous drooling dog.

In some cases, natural smells have already been trademarked (also called Olfactory Marks).   “The Smell of Fresh Cut Grass”, for instance, is officially trademarked by a tennis ball company; United Airlines has a trademarked “Landing Scent”; and a Ukulele company has the only instruments that smell of Piña Colada.   These are all quite benign examples of “Non-Conventional Trademarks,” which in addition to smells and sounds also include shape and color. Toblerone candies are pretty unmistakable with their shape, and you probably wouldn’t find another candy bar shaped like the chocolaty peaks and valleys of the bar.

The filing of Non-Conventional Trademarks (particularly in the US) are increasing based on an ever more competitive market (whatever that may be) – companies are looking for new ways to get ahead. Recently, a company filed an olfactory trademark for the fresh scent of oranges some liken to the smell of orange juice. Even the liquid looked an appetizing and refreshing orange color. Except this liquid is far from one you’d want to ingest.; it’s developed by Flotek Industries – a Fracking corporation out of Texas – for its Fracking Chemicals.

So where is the line drawn? Can companies patent natural shapes if consumers have come to liken its product to a certain shape that appears in nature, like that of the ubiquitous golden spiral? Or the fractals that are so pervasive in our natural world?   There have been a few examples of trademarking nature’s smells, yet it’s the first in the world of fracking chemicals, which is decidedly quite a harmful practice for the environment and human health.  Hence, it’ll be interesting to see the ruling on this and if it does go through, if there will be other companies in these types of these industrial niches that will employ this technique.


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