Can You Trademark a Scent or Fragrance?

When people think of trademarks, they usually think of logos, brand names, or catchy slogans. These are the visual and verbal identifiers that help us associate a product or service with a particular business. But trademark law extends far beyond the visual. Believe it or not, it’s actually possible to trademark a scent, but the process is anything but simple. Continue reading and reach out to Lemler IP to speak with a seasoned New Orleans, Louisiana trademark lawyer to learn more. Here are some of the questions you may have:

Is it Really Possible to Trademark a Fragrance?

Yes, in some cases, scents can be trademarked. However, because smell is subjective and difficult to define in precise terms, obtaining a trademark for a fragrance is incredibly rare. According to the United States Patent and Trademark Office (USPTO), a scent must be distinctive and must serve no functional purpose to qualify for trademark protection.

This means the scent can’t be there just to make a product smell good. For example, you can’t trademark the scent of lavender in soap, because people expect soap to smell nice, and that fragrance serves a functional role. However, if a scent is used in a way that identifies the source of a product and is not essential to the product’s function, it may be eligible for trademark protection.

A well-known example is a case where a floral scent used in sewing thread was successfully trademarked. Another well-known example is the scent associated with Play-Doh®, which has a distinctive sweet, slightly musky, vanilla-like fragrance of the modeling compound. These scents weren’t necessary to the function of the thread or modeling compound respectively; they were simply there as brand identifiers, which were enough to convince the USPTO that the respective fragrances were non-functional, distinctive aspects of the brands.

What Are the Requirements for a Scent Trademark?

The pathway to registering a scent as a trademark with the USPTO is notably complex and significantly less common than traditional trademarks like brand names and/or logos. There are three critical requirements for successfully trademarking a scent.

The first hurdle in trademarking a scent is proving that it has acquired distinctiveness, also known as secondary meaning. In plain terms, that means consumers must directly associate the scent with your product or service. The aroma must not be common or a naturally occurring smell for the type of associated product. Additionally, the fragrance must be unique and uniquely associated with identifying the corresponding brand. This typically requires years of use and strong evidence that the public sees the scent as uniquely tied to your brand.

Second, your scent must be non-functional; it cannot be trademarked if it serves a utilitarian purpose, is essential to the purpose or use of the associated product, or if the scent affects the cost or quality of the product. If the fragrance is used to mask odors, enhance product experience, or serve any other functional purpose, the USPTO will not approve the trademark for registration. This is because trademark law is meant to protect brand identifiers, not product features. The scent must not be a product’s active feature; to be trademarked, it must be purely a source identifier for the brand.

Finally, you must clearly and consistently describe the scent in your trademark application. Unlike visual logos, which can be depicted in an image, a scent has to be described in detail with words, and those words must be specific enough to identify the exact smell. Simply saying “a pleasant floral aroma” won’t be enough. The level of detail needed for a scent trademark’s written description must be so precise that one would recognize the scent without tasting or smelling the actual product, it must also be distinguishable from every other registered scent trademark.

If you’re considering a scent-based trademark, working with an intellectual property attorney is not just a good idea–it’s essential. The requirements are strict, the approval rate is low, and the legal standards are complex.

An experienced lawyer here at Lemler IP can help you determine whether your scent meets the necessary criteria and can guide you through the process of preparing and submitting an application.