INVISIBLE IDENTITIES: PROTECTING SCENTS IN COMMERCE

-       Aditya Sharma^[1] & Keshav Bhardwaj^[2]

ABSTRACT

In a world where brands increasingly compete through sensory experiences, scent has emerged as the most evocative identifier of origin, yet it remains unrecognised legally. Despite its commercial power to trigger memory and brand association, trademark law continues to grapple with whether and how olfactory marks deserve protection. Comparing jurisprudence and commercial practice in these countries US, EU, UK, and UAE, this article asks whether olfactory branding can be merged with trademark doctrines of distinctiveness, non-functionality, and representation. It argues that independent scent marks risk overreach and public-domain enclosure and proposes a “secondary-mark” framework: scents registrable only with primary marks and supported by standardised scientific evidence, distinctiveness data, and procedural safeguards. It delineates evidentiary protocols, enforcement boundaries, and institutional safeguards, presenting a coherent model for integrating scent-based marks within the existing trademark regime.

Keywords: Sensory Marketing; Scent Trademarks; Secondary Marks.

INTRODUCTION

Trademark law has always been designed to protect the dynamic nature of commerce. It began as the protection of names, symbols, or labels, and has now expanded to embrace the era of non-traditional trademarks. Sound marks, colour combinations, motion sequences, and, more controversially, scents are some ways through which brands try to appeal to the whole human sensorium. Among these, olfactory marks have stood apart because they are memorable and capable of forging strong emotional bonds that visual signs alone cannot. However, the law remains unsettled. Courts and registries are grappling with questions targeted at the core of trademark law: Can a scent ever be distinctive, when so many smells are naturally occurring? Should functionality exclude entire industries like perfumery from protection? How can a fleeting and volatile stimulus such as a scent be represented with clarity and precision?

This paper argues that India must not ignore the possibility of olfactory branding becoming a commercial reality, and neither can it afford the doctrinal overreach of granting exclusive rights over smells in the abstract. We believe that the answer lies in a compromise where scents are registrable only when used with a traditional mark to incentivise innovation and prevent undue monopolisation of natural resources.

VISUAL BRANDING TO SENSORY EXPERIENCE

Historically, trademarks only consisted of visual cues such as logos, words, symbols, or taglines. The intention behind this was to protect the goodwill built using these tools. However, recent trends show businesses turning to more advanced forms of sensory marketing strategies involving smell, sound, touch. Strategies engaging the olfactory senses have particularly emerged as powerful among these because of their unique neurological connection to memory and emotion, leading to instant and lasting impressions.^[3]

Scents are more easily recalled than visual cues. These factors make scent marketing the upcoming trend across industries. A key example is Singapore Airlines aromatising its signature fragrance, "Stefan Floridian Waters," into aircraft cabins, crew uniforms, and hot towels to induce a sense of luxury and consistency into every passenger's experience^[4]. Similarly, the distinctive scent of Crayola crayons has been designed to be an identifier of authenticity and nostalgia by evoking childhood memories across generations through its "slightly earthly smell with leather-like clay undertones". Even Starbucks augments the aroma of freshly brewed coffee through its stores using scent diffusion systems to reinforce its brand experience. This rise, supported by many other instances^[5], has further led to the birth of companies like ScentAir, whose sole venture is to supply fragrances to venues ranging from Bloomingdale's to Hard Rock Hotels^[6].

GLOBAL ENCOUNTERS WITH SCENT MARKS: SUCCESSES, REJECTIONS, AND LESSONS

The jurisprudence around the concept of trademarking scents is still in its nascent stages. Intellectual Property Law is supposed to be standardised internationally, but various jurisdictions have differed in their approach towards scent marks and arrived at divergent conclusions.

a)    United States - Empirical Distinctiveness and Market-Based Recognition

The Lanham Act defines a trademark as "any word, name, symbol, or device, or any combination thereof" capable of distinguishing goods or services^[7]. This definition has permitted scents to be registered as long as they satisfy two primary requirements: (i) non-functionality and (ii) acquired distinctiveness. The US was one of the first jurisdictions to accept a trademark over a scent through In Re Clarke^[8], where a business owner sought to protect its unique sewing thread with a floral scent. The USPTO granted the patent while holding that the product had acquired distinctiveness and acted as a source identifier. Another example is the iconic Hasbro's Play-Doh scent registered in 2018, described as "sweet, slightly musky, vanilla-like fragrance, with slight overtones of cherry”.

b)    European Union - The Demand for Clarity and Precision

In the EU, the legislative basis is found in the Trade Mark Regulation, which permits registration of any sign capable of (i) distinguishing goods or services and (ii) being represented in a manner that is "clear, precise, self-contained, easily accessible, intelligible, durable and objective".^[9] The EU's leading authority on this subject is the Sieckmann case^[10], where the applicant attempted to register a scent described as "balsamically fruity with a slight hint of cinnamon." The CJEU took a stricter stance in laying out the trademark registration guidelines. The representation made in the application must be "clear, precise, self-contained, easily accessible, intelligible, durable, and objective." However, these criteria have been impossible to satisfy and no scent has been registered after the Sieckmann case.

c)     United Kingdom - Administrative Caution within Doctrinal Consistency

In the UK, a trademark is defined as any sign capable of being represented in a way that enables people to determine the clear subject matter of the protection being afforded^[11] making scent marks more feasible. The UK has approved the application for the scent of roses in tyres by “Sumitomo Rubbers”. Later, “Dunlop Tyres” also acquired the said registration for use in their tyres^[12].

d)    United Arab Emirates - Expanding Recognition

Recent developments in the trademark law in the UAE, through its 2021 Federal Decree, have explicitly recognised non-traditional marks, including scents, under Article 2.^[13] The intent to broaden the scope of legislative protection was confirmed by the Minister of Economy while speaking about hotel chains and signature scents.^[14]

COMPARATIVE INSIGHTS - LESSONS FROM DIVERGENT LEGAL PHILOSOPHIES 

The divergent views towards olfactory marks reflect distinct institutional priorities. The European position reflects a concern for the public function of the register being the communication of what is protected. The CJEU’s insistence on the Sieckmann criteria flows from a policy judgment holding that a trademark register is not a private ledger but a public map of exclusivity. If a proprietor could describe a scent in vague or technical terms, third parties would lack a practicable means to assess clearance risk.

By contrast, the U.S. approach privileges market validation. The emphasis is on whether a sign practically functions as a source indicator and, the centrality of acquired distinctiveness and the non-functionality inquiry. Decisions such as In re Clarke illustrate that where empirical proof demonstrates consumer association, the law will recognise non-traditional signs despite representational ambiguity.

The United Kingdom and other common law registries take up an intermediate stance as they accept that registration rules must protect the public interest, but are institutionally willing to allow evolution in representation as technology matures. Administrative practice in these jurisdictions shows cautious openness, and registries consider unconventional means of specification if they can be shown to afford sufficient accessibility to the public.

Emerging reforms, such as the UAE’s broadened statutory language, reveal a legislative intent to accommodate non-traditional marks proactively. Yet the UAE’s experience also shows the gap between statutory permissiveness and the creation of reliable procedural and technical standards.

A reform path for India should reconcile these initiatives to preserve the register’s public function while recognising that distinctiveness can be proven through market evidence.

WHY SCENT MARKS STRUGGLE: SUBJECTIVITY, DISTINCTIVENESS, AND FUNCTIONALITY

The registration of scent trademarks is hindered by intricate conceptual and legal difficulties. Apart from procedural ambiguities, barriers arise from the inherent nature of olfactory perception, which challenges the established principles of distinctiveness, non-functionality, and representation that form the base of trademark law.

a)    Subjectivity and Reliability

Individuals perceive smells varyingly depending on different factors such as the environmental context, age, or even their genetic predispositions. This variance sabotages the reliability of scents as objective source identifiers. A fragrance that evokes a strong association for one consumer may be entirely unremarkable to another. This lack of uniformity undermines the central function of a trademark, which is to act as a consistent and objective indicator of source.

b)    Distinctiveness and Descriptive Character

Distinctiveness remains the cornerstone of trademark protection, yet most scents encountered in commerce are inherently descriptive or generic. Vanilla, citrus, or floral notes are ordinarily associated with the nature or quality of a product rather than its source. For a scent to qualify as distinctive, it must acquire secondary meaning through long and exclusive association with a particular source. However, proving this in practice demands substantial empirical evidence such as consumer surveys, sales data, and advertising records. Even then, distinctiveness achieved through use remains fragile, as public association may shift or dissipate over time.

c)     Functionality and Promoting Fair Competition

Furthermore, trademark law prohibits monopolising features that perform a functional role and are essential to the product’s use or performance. Numerous scents serve functional purposes, such as lemon fragrance, which signifies freshness in cleaning agents, or the aroma of perfumes and cosmetics. In these cases, the scent is considered to be inherent to the product and thereby excluded from trademark protection.^[15] Accordingly, the perfumery industry would remain excluded from the ambit of scent trademarks.

d)    Representation and Evidentiary Barriers

Doctrinal barriers flow primarily from the requirement of graphical representation. In India, the Trademark Rules, 2017, continue to require graphical representation, effectively excluding scents from registration. European jurisprudence reaffirmed these limitations by laying down standards that no existing method of olfactory depiction satisfies. Contrarily, the US adopted a more inclusive definition of trademarks allowing for a written description of the scent, accompanied by a physical sample. Therefore, representation of the scents in a way that makes the application capable of protection has been a primary concern worldwide.

PROPOSITION: A FRAMEWORK FOR BALANCED RECOGNITION

Accepting the subjectivity in the association different people attribute to the same smell, we believe that even though scents, in isolation, are not sufficient to differentiate a brand, coupled with other factors such as the visual marks, they gain distinctiveness. Based on this idea, we propose the concept of secondary marks, which do not grant the protection usually accredited to an ordinary trademark, but rather grant the status of a secondary mark to the relationship between the product and the arbitrary addition of a scent.

a)    Distinctiveness Test

Distinctiveness of a trademark is central to its existence and recognition, but the concept itself is dynamic and does not come to trademarks inherently. It is a function depicting the interaction between a particular trademark and the brand's consumers. When a brand consistently uses a particular scent along with other brand identifiers, consumers will invariably form memorable associations sufficient for the mark to indicate origin. Consequently, distinctiveness should be assessed in line with the existing industry standards through evidentiary pathways, such as market surveys, prolonged use, or advertising costs.

This permits protection warranted by marketplace reality while avoiding the erroneous conclusion that all scents are inherently incapable of performing trademark functions.

b)    Functionality Rule

Functional scents that constitute the core identity or purpose of a product, such as perfumes, fall outside the domain of trademark law by doctrinal design. Their innovation lies not in source identification but in chemical ingenuity or craftsmanship, which is more appropriately protected under patent or trade secret law. This doctrinal division ensures that trademarks preserve fair competition while patents and trade secrets protect creative and technical achievement. Our proposed framework recognises this boundary and allows registration as a secondary mark only for those non-functional scents that have been arbitrarily added to non-scented goods for branding purposes.

c)     Objective Measures

While it is true that olfactory subjectivity is greater than other branding mediums, this should not penalise businesses that creatively use scent as a brand differentiator. The answer lies in calibrating evidentiary standards by employing objective measurement tools to homogenise olfactometric signatures. This can be done with the help of recording scents in the form of analytical chemical profiles and operationalising the scent in reproducible terms. Technologies such as gas chromatography–mass spectrometry and e-noses generate quantifiable data that translate olfactory characteristics into reproducible, machine-readable outputs. GC–MS produces a chemical fingerprint, while e-noses employ an array of sensors that yield digital scent signatures based on pattern recognition algorithms. These outputs can be archived and compared much like digital sound files or Pantone colour codes.

d)    Procedural Safeguards

The biggest hurdle is the requirement for a graphical representation. However, the previously discussed technologies can objectively capture, represent, and distinguish scents, and be utilised to tackle these barriers. Additionally, we must lay down certain procedural safeguards as follows - 

Evidentiary requirements (minimum mandatory set):

1. Chemical composition: laboratory-produced chemical profile identifying principal volatile constituents;

2. Electronic signature: e‑nose or olfactometer or GC-MS output translated into a machine-readable olfactory code;

3. Verbal description: concise, intelligible description to aid public accessibility;

4. Specimen: sealed and certified sample;

5. Distinctiveness evidence: consumer surveys, sales/marketing data, or other marketplace indicators showing that the scent, in conjunction with a primary mark, identifies the source.

e)     Administrative Process

Given the prohibitive costs and logistical challenges of equipping every trademark office with advanced technology, India could adopt a hub-and-spoke administrative framework. Under this model, Regional Trademark Offices would continue to conduct initial scrutiny and prima facie examinations of scent trademark applications. Where an examiner determines that an application raises complex issues of distinctiveness, functionality, or representation, the file would be referred to an office equipped with an Olfactory Verification Centre (OVC). The OVC, functioning as an accredited central laboratory, would possess specialised instrumentation that would enable the objective analysis of scent profiles and the generation of a standardised olfactory report containing the scent’s digital code, chemical composition, stability assessment, and expert observations on distinctiveness and non-functionality.

The resulting report would form an integral part of the trademark record, accessible during publication, opposition, and enforcement proceedings. Such a layered verification mechanism ensures that frivolous or non-distinct claims are filtered early, while legitimate applications receive scientifically grounded evaluation. This system reduces administrative burden and cost while enhancing procedural integrity and evidentiary.

f)     Enforcement and Scope of Protection

The protection accorded to secondary scent marks must achieve a balance between doctrinal restraint and practical enforceability. A registered secondary scent mark would entitle its proprietor to seek injunctive and compensatory relief where another party employs an identical or deceptively similar scent in conjunction with comparable goods or services, thereby causing consumer confusion or misleading association. Enforcement would be guided by a composite assessment, which would examine the similarity of scents, the proximity of the goods, and the degree to which consumers associate the olfactory element with the registered primary mark. The employment of advanced technological tools can help in representing the scents through a scent profile, and a deviation of 10-15% from that profile could be given protection. This reflects the understanding that olfactory perception differs from visual or phonetic recognition, requiring a more contextual evaluation of confusion and distinctiveness.

Relief would be available on three primary grounds:

• direct infringement, where the scent mark combination is replicated for similar goods;

• associative misappropriation, where a similar scent is employed to evoke the same brand impression or exploit goodwill;

• dilution or unfair competition, where unauthorised use diminishes the distinctiveness or reputation of the registered scent mark even in the absence of direct confusion.

Grounds for revocation would include functionality, loss of distinctiveness, or failure to maintain registered olfactory specimens. Through this formulation, the proposed right remains capable of offering protection against misuse without disrupting the foundational balance that underpins trademark law.

CONCLUSION

The debate over scent trademarks captures a broader tension existing between the demands of modern branding and the safeguards of law. Independent scent marks falter on grounds of distinctiveness, subjectivity, functionality, and graphical representation, but denying them any legal recognition would have severe repercussions, as innovation would be unprotected. The proposition of secondary marks is put forward to bridge this gap. Linking scents to established marks instead of protecting them as standalone marks helps brand identities remain exclusive while avoiding encroachment of the public domain. Therefore, it serves as a practical middle path.

Nevertheless, the proposed framework is not without its challenges. Implementing advanced olfactory technology across registries may prove resource-intensive, and developing universally accepted standards for scent representation will demand sustained scientific collaboration. The scope for further research lies in refining these mechanisms by exploring international harmonisation of olfactory registration protocols, assessing the evidentiary reliability of various evidentiary methods, and analysing how courts might interpret the interaction between primary and secondary marks in enforcement disputes.

^[1] Aditya Sharma is a student at Indian Institute of Management, Rohtak.

^[2] Keshav Bhardwaj is a student at Indian Institute of Management, Rohtak.

^[3] Laurence Minsky, Something Smells in Marketing’s Future, DestinationCRM (Feb. 28, 2025), https://www.destinationcrm.com/Articles/Editorial/Magazine-Features/Something-Smells-in-Marketings-Future-168180.aspx.

^[4] Rob Forbes, Singapore Airlines’ Sensory Branding: Customer experience, ScentSwirl (Jan. 14, 2025), https://scentswirl.com/sensory-branding-singapore-airlines/.

^[5]   Nick Routley, Meet the Exclusive Club of Trademarked Scents in the U.S.,  Visual Capitalist (Dec. 28, 2024) https://www.visualcapitalist.com/trademarked-scents-us/.

^[6] Leigh Duncan Durst, Scent Branding: Smell of Success?, MarketingProfs (Jan. 30, 2007), https://www.marketingprofs.com/7/duncan9.asp.

^[7] Trademark Act of 1946 (Lanham Act), ch. 540, 60 Stat. 427 (1946) (codified as amended at 15 U.S.C. §§ 1051–1141n).

^[8] In re Clarke, 17 U.S.P.Q.2d (BNA) 1238 (T.T.A.B. 1990).

^[9] Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark, OJ L 154, 16.6.2017, at 1–99 (codified, as of June 2017) (EU).

^[10] Case C-273/00 (Sieckmann) (Dec. 12, 2002) (interpreting Directive 89/104/EEC on signs of which a trademark may consist).

^[11] Trade Marks Act 1994, c. 26 (U.K.) (unofficially consolidated version, updated as of Aug. 2024), https://assets.publishing.service.gov.uk/media/66d6f1b6c52d5fb4c82ddd9c/Consolidated-Trade-Marks-Act-1994-August-2024.pdf.

^[12] Rajiv Suri, Registration of Unconventional “Smell” Trademarks, IP Business Academy (Feb. 23, 2024), https://ipbusinessacademy.org/registration-of-unconventional-smell-trademarks.

^[13] Federal Decree-Law No. 36 of 2021 Concerning Trademarks (U.A.E.), art. 2 (defining “trademark” to include “sound or smell” marks), enacted Jan. 2, 2022.

^[14] “UAE: You Can Register Sound, Scent, Holograms as Trademarks,” Khaleej Times (Feb. 7, 2024), https://www.khaleejtimes.com/uae/uae-you-can-register-sound-scent-holograms-as-trademarks.

^[15] IP Australia, 21.7. Scent Trade Marks, Trade Marks Manual of Practice & Procedure (Apr. 20, 2022), https://manuals.ipaustralia.gov.au/trademark/7.-scent-trade-marks.