This is part 3 of our series on unconventional trademarks. In this article, we look at trademarked scents (click these links to view the previous articles on Color and Sound trademarks).

The limitation of scents identifiable by most people is why a scent mark is so potentially valuable. Unlike images, words and sounds, the number of suitable scents recognized by the public is pretty limited. That means the potential “supply” of scents is very limited.

Smell is one of your most powerful senses, evoking emotional responses or memories of events. Many variables affect your sense of smell including purity, concentration, temperature and you sensitivity to smells.

Scent marks are new by IP standards. 1990 was the first time a scent mark was recognized in the US. Internationally, scent marks are now recognized in other countries such as the UK. To qualify as a scent trademark ( otherwise known as “olfactory marks”), it must be identified with a particular product on which it’s applied-not just the scent in its self.

Scent marks are difficult to register, since describing smells is very challenging. The other big issue is searching to find out if your scent mark conflicts with other scent marks. There is no central database or identification system to search and clear these marks. This “challenge” is fostering new IP innovations in computer generated “scent simulation” technology as a way to solve this problem. (Gives new meaning to “this software stinks”).

A smelly trademark is an unconventional way to stand out from the crowd. They are particularly attractive to consumer products companies, looking for a way to differentiate their brands. You’re probably thinking scent marks are ideal for perfume companies? They are except perfume companies can’t trademark their scents since their product is the scent.

Personal fragrances such as perfumes are often registered as trademarks. Channel No 5 is one of the most well-known brands. Channel tried unsuccessfully to scent mark No 5 in the UK with this description of the scent:

A scent of aldehydic-floral fragrance product, with an aldehydic top note from aldehydes, bergamont, lemon and neroli; an elegant floral middle note, from jasmine, rose, lily of the valley, orris and ylang-ylang; and a sensual feminine note from sandal, cedar, vanilla, amber, civet and musk.

Here’s some examples of registered scent marks. See if you can guess the type of product. (hint: they are not perfume or foods). The answers are the end of this article:

  1. A floral fragrance/smell reminiscent of roses
  2. Strong smell of bitter beer
  3. Smell, aroma or essence of cinnamon
  4. Smell of fresh-cut grass


 

Answers

  1. Sumitomo Rubber
  2. flights for darts
  3. furniture, parts and fittings
  4. tennis balls
Mr. Brenner has over 30 years IP management and licensing experience with various industries including consumer products, food, entertainment, software,health technology, medical devices and digital media. He has led international licensing programs as both licensee and licensor, and through consulting projects focused on strategy and management, outbound / inbound licensing initiatives, and IP audits and due diligence.. He has developed and managed deals with Fortune 1000 companies including Universal Studios, Fox Interactive, Sony Pictures, Dow, Cargill, SmithKline Glaxo, Ranir, Coca Cola, Kellogg’s, Hasbro, Mattel, and others. He is a public speaker and published writer, and has taught classes at the university level. His speaking events have included UC Irvine, Tritech/SBDC, Irvine Chamber, Fast Start Studios, ICFO Investors Conference, San Diego Investment Conference, Westlaw Legal Center (NYC), National Speakers Association, and the Hong Kong FilmArt Expo. He has written several articles on licensing intellectual property which have appeared in the Licensing Journal, Intellectual Property Magazine, and License India.

One Reply to “Does Your Trademark Stink?”

  1. While these are the four primary defined cases of a “bad faith registration”, this definition has been used far more loosely in legal proceedings involving trademark infringement.

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