Can you trademark a scent?

It is a common misconception that only words and logos can be trademarked. A brand can also lay claim to certain aspects of a product such as their colour or three-dimensional shape.

The most common types of trademarks are word, figurative and combination marks. All other marks are classed as non-conventional trademarks, which have the same function as any of the previously mentioned types but are generally more difficult to register.

Scent marks come under this category and since it is extremely difficult to register one successfully, only a handful of them exist.

According to WIPO “To obtain registration of a smell mark applicants must be able to visually represent the product’s scent and must show it is distinctive from the product itself.” Therefore, it would not be possible for a perfume brand to trademark its perfume’s scent as it relates directly back to the nature product. In addition, the scent must have acquired distinctiveness in the marketplace in order to be eligible for registration as a trademark.

Furthermore, when applying to register your scent mark you may have to provide an example of the scent to be tested by the trademark authority’s examiner. According to The Wall Street Journal, Grendene, a Brazilian footwear company, were successful in acquiring their U.S. scent trademark and therefore they may have had to send a pair of their bubblegum scented sandals to the trademark examiner during the application process.

Only two scent marks have been successfully registered in the UK since this type of registration came into practice in 1994. In the same year Unicorn Products successfully registered a mark for darts whose flights give off "the strong smell of bitter beer" when released into the air. Then in 1995 Sumitomo applied and was successful in registering a scent trademark for floral-scented car tyres.

A scent mark can be a real asset to your company as, like any trademark, it can act as a source indicator for your product whereby customers associate your chosen scent with your brand. Furthermore, a scent can act as a trigger for a memory or a feeling and can therefore have a significant impact on your consumers and be more effective than just a logo or a word. For example, the smell of a sea breeze could remind you of beach holidays as a child and could be a good scent mark for surfboards or beach wear.

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