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Can you trade mark a smell?

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There have been several attempts to trade mark a smell but few have succeeded. The issue is how to represent the smell in a manner which conforms with the Trade Mark Act 1994. Specifically, it must clearly and precisely show the subject matter of the smell that is protected so that others can inspect the public register and see the protection that has been given to the mark.

A trade mark must also be distinctive and be capable of indicating origin. For example, most people will recognise the tick/swoosh logo as belonging to Nike or the golden arches as belonging to McDonalds.

Smells can be powerful memory triggers; most people can be reminded of experiences they have previously had by a smell. However, would you associate a smell as being owned by a particular company, perhaps with food.

Failed attempts at registering a smell as a trade mark have shown that merely describing the smell will be insufficient. The issue with a description is that they are far too subjective. Various people will often describe the same smell differently.

In Sieckmann v Deutsches [2003] at the Court of Justice of the European Union, the applicant provided a description of the smell, the chemical formula, and a sample of the smell in a container, yet the court still rejected the mark.

However, despite the difficulties a few smells marks have been successful. In the UK a ‘floral fragrance smell reminiscent of roses applied to tyres’ has been a registered trade mark. A ‘strong smell of bitter beer applied to flights for darts’ has also been a trade mark in the UK. In the EU the ‘smell of fresh cut grass’ for tennis balls has been a trade mark.

Additionally, it has been held in cases relating to perfume, that copyright can exist in relation to smell, and that copyright can be infringed.

Our dedicate intellectual property (IP) team are ready to assist you with all your IP needs, so don’t delay, call today.

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