Scents and Sensibility: The Legal Challenges of Trademarking Fragrances
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By Sophia Sonkin '27
Securing a trademark for a scent is like trying to catch a cloud in your hands: ethereal, amorphous, and almost impossible to pin down. Although courts have begun to explore the realm of olfactory intellectual property, securing exclusive rights to a fragrance’s smell remains a rare, contentious, and often futile effort.
Despite the presence of distinctive scents in everyday products, the number of officially registered scent trademarks in the United States is astonishingly low. As of mid-2023, only 15 scent trademarks were recognized by the United States Patent and Trademark Office (USPTO), a figure standing in stark contrast to the millions of visual logos and sound marks that have been registered. (1)
Why Is Trademarking a Scent So Difficult?
Although the legal system is designed to protect distinctive brand elements (logos, names, even colors), scents remain one of the most elusive candidates for trademark protection. One major obstacle to protection is the requirement in many jurisdictions, such as India and the European Union, that trademarks be "graphically represented." Scents are not easily depicted, unlike visual or auditory marks, which can be drawn or notated. Applicants have attempted several workarounds: written descriptions of the smell, chemical formulas, and even physical samples submitted alongside applications. These efforts have fallen short since courts have found written descriptions too subjective and variable; descriptions like "woody" or "floral" might hold various meanings for different people. Chemical formulas have been rejected as insufficiently precise, given that the same formula can yield different smells depending on purity, concentration, and synthesis method. Physical samples, meanwhile, degrade over time and cannot be permanently stored in a trademark registry. (2)
Even if this hurdle were cleared, the subjectivity of scent poses another problem. Smell is an inherently personal and variable experience, shaped by biology, culture, and memory. (3)
What smells like fresh linen to one person may evoke baby powder or wet grass to another. Studies in olfactory perception have shown that individuals differ significantly in how they identify and describe the same scent, with variations linked to age, genetic makeup, prior exposure, and emotional association. A 2017 study published in Current Biology found that Indigenous Jahai speakers in Malaysia were far more capable of naming smells precisely than English speakers, suggesting that even language and culture shape how we perceive. (4) Unlike a color, which can be pinned to a Pantone code, or a sound, which can be reproduced from a waveform, there is no universally accepted system for classifying or communicating smell with the precision trademark law demands. (5)
To complicate matters further, entirely different combinations of ingredients can produce remarkably similar scents, while nearly identical formulations can diverge widely in aroma depending on concentration, blending order, or raw-material source. A trace of a vetiver plant from Haiti can smell earthy and smoky, while a batch from Java might come across as cleaner and greener. Iso E Super, a synthetic molecule widely used in perfumery, smells of almost nothing to roughly half the population, while the other half detects a vivid cedarwood note. These discrepancies mean that even if a company successfully registers a scent, enforcement becomes deeply problematic. A competitor could argue that their formulation, however similar it smells to a consumer, is chemically distinct and therefore not infringing. This is precisely what arose in Something Old, Something New v. QVC (2013), where efforts to establish scent similarity required costly and inconclusive expert testimony. (6)
Attempts have been made to bring more objectivity to scent description. Some trademark protection applicants have turned to gas chromatography data, which maps the chemical profile of a fragrance, as a more precise form of representation. Givaudan, one of the world's largest fragrance houses, has internally developed detailed molecular fingerprints for its scents, but trademark offices have not accepted these as sufficient for registration purposes. (7) Some trademark applicants and fragrance industry professionals have proposed standardised odor wheels, borrowed from the fragrance and wine industries, as a reference framework. The Fragrance Wheel developed by Michael Edwards, which organises scents into families such as fresh, floral, oriental, and woody, is widely used in the industry but has not been adopted as a legal standard. (8) So far, neither approach has gained traction with trademark offices or courts, due to finding these suggestions to be too technical for public accessibility or too imprecise to satisfy legal standards. (9) Until a recognised system emerges, the issue of subjectivity is likely to remain one of the field's most stubborn obstacles.
Despite other difficulties, the most formidable barrier remains the functionality doctrine: under trademark law, a feature that is essential to a product’s use or purpose cannot be protected. For perfumes, candles, or air fresheners, the scent is the product. To trademark the fragrance itself would be akin to trademarking the taste of a soda or the texture of a lotion, protecting the very thing the consumer is buying, rather than a symbol that points to its origin. In the world of scent, form and function are often indistinguishable, making legal ownership nearly impossible to pin down. (10)
Non-Functionality and Distinctiveness: The Legal Bar for Scent Trademarks
For a scent to qualify for trademark protection, it must satisfy two key legal requirements: non-functionality and distinctiveness. (11)
Non-functionality means the scent cannot be essential to the product's function or purpose. If the scent is the product, as in perfumes, candles, or air fresheners, it cannot be trademarked. However, if the aroma is incidental and serves only to identify the brand, it may be eligible. For example, the U.S. granted a trademark to the toy company Hasbro for the distinctive sweet, vanilla-like smell of Play-Doh, which serves no functional purpose in a modeling compound. (12) Similarly, Celia Clarke of Clarke's Thread successfully registered a plumeria blossom scent applied to her sewing thread and yarn, a product in which the fragrance had no utilitarian value whatsoever. (13) It remains one of the first and most cited scent trademark registrations in U.S. history.
Distinctiveness requires the scent to be so unique and recognizable that consumers immediately associate it with a specific brand. This is difficult to prove, meaning few companies succeed. The Play-Doh example again stands out. Hasbro had to demonstrate decades of consistent use, marketing materials that referenced the scent, and widespread consumer recognition. (14) In another case, Verizon attempted to trademark the "flowery musk scent" of one of its retail stores but was rejected, as the company failed to show that consumers linked the smell directly to the Verizon brand. (15)
Despite the growing importance of sensory branding in a saturated market, trademarking a smell remains one of the most challenging frontiers in intellectual property law. (16) Take Chanel No. 5, arguably the most iconic fragrance in the world, a perfume with decades of cultural cachet and commercial success. Despite multiple attempts, Chanel has consistently failed to secure trademark protection for its scent. Courts and intellectual property offices around the globe have held firm: because the scent constitutes the product itself, it is deemed functional, and therefore ineligible for trademark protection. (17) The ruling reflects a foundational principle in trademark law: functional features, no matter how distinctive, cannot be monopolized.
But not all attempts end in vain. In the U.S., a few unconventional applicants have succeeded. The scent of plumeria blossoms was granted trademark protection for sewing thread and embroidery yarn. For these products, scent serves no utilitarian purpose and therefore meets the distinctiveness and non-functionality criteria. Similarly, Crayola has trademarked the recognizable, nostalgic aroma of its crayons. Unlike perfume, this scent is incidental to the crayon’s use, thus passing legal inspection.
These cases illustrate a crucial legal distinction: a scent can only be protected when it is not inherent to the product’s utility or performance, but instead serves as a unique brand identifier. (18)
Why Winning a Scent Trademark Is Only Half the Battle
Even for those few who manage to secure legal recognition, the road ahead is hardly straightforward. Enforcement of scent trademarks is notoriously complex, and owners face three additional problems that make protection difficult to sustain in practice:
Invisible Infringement: You can't plug a scent into a trademark search engine. There’s no visual database for olfactory marks, making detection of potential infringement almost impossible without expert chemical analysis or third-party complaints. (19)
Subjective Similarity: Unlike logos or names, which can be analyzed side-by-side, scent disputes rely on human perception. What smells “confusingly similar” to one person might be totally distinct to another. This subjectivity complicates litigation and opens the door to inconsistent rulings. (20)
Territorial Limits: Trademark rights are jurisdictional. A scent trademark approved in the U.S. offers no shield in Europe or Asia. To protect a smell globally, a brand must navigate a maze of country-specific rules and inconsistent recognition of non-traditional marks. (21)
Can the Law Finally Make Room for Smell?
Legal frameworks have long trailed the evolution of sensory branding. But the gap is narrowing, and the stakes for closing it are higher than they might appear.
Luxury retailers, hotel chains, and consumer brands collectively spend billions annually on sensory identity. The science behind this is well established: smell is the sense most directly linked to memory and emotion, and brands that use it effectively build loyalty that visual or verbal branding alone cannot replicate. When that investment can be copied without consequence, the incentive to innovate is undermined.
The argument for further development in trademarking scent is also a matter of consistency. A company can protect a specific shade of red, a five-note sound logo, or the shape of a bottle. The law has found ways to accommodate all of these. There is no principled reason why a genuinely distinctive, non-functional scent should be treated as permanently beyond reach, other than the fact that the legal tools to handle it have not yet been built.
Advances in chemical fingerprinting and digital scent transmission suggest those tools are coming. The question is whether legal frameworks will move to meet them, or continue leaving one of branding's most powerful assets entirely unprotected.
But for now, scent remains the most elusive of brand signatures. An asset that marketers prize, but the law struggles to hold.
Endnotes
“Policy Questions Regarding Protection of Scent Marks,” Osgoode Hall Law School IPilogue, March 26, 2020, https://www.yorku.ca/osgoode/iposgoode/2020/03/26/policy-questions-regarding-protection-of-scent-marks/.
Ralf Sieckmann v. Deutsches Patent‑ und Markenamt (C‑273/00), E.C.R. I‑11737, Court of Justice of the European Union, https://eur‑lex.europa.eu/legal‑content/EN/TXT/?uri=CELEX%3A62000CJ0273.
“Protection of Olfactory Marks and the Graphical Representation Requirement,” International Journal for Multidisciplinary Research 6, no. 6 (2024): 1–10, https://www.ijfmr.com/papers/2024/6/31646.pdf.
“Protection of Olfactory Marks and the Graphical Representation Requirement,” International Journal for Multidisciplinary Research 6, no. 6 (2024): 1–10, https://www.ijfmr.com/papers/2024/6/31646.pdf.
Asifa Majid and Niclas Burenhult, “Odors Are Expressible in Language, as Long as You Speak the Right Language,” Current Biology 24, no. 9 (2014): 1–5, https://doi.org/10.1016/j.cub.2014.03.046.
Something Old, Something New, Inc. v. QVC, Inc., 653 F. App’x 81 (3d Cir. 2013), https://casetext.com/case/something-old-something-new-inc-v-qvc-inc.
Laura E. Guss, "The Case for Chemically Standardized Nontraditional Scent Trademarks," Marquette Intellectual Property Law Review 27 (2024): 1–42, https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1041&context=ipilr.
Michael Edwards, Fragrances of the World (New York: Fragrances of the World, 1992).
“Policy Questions Regarding Protection of Scent Marks,” Osgoode Hall Law School IPilogue, 2020.
Lanham Act, 15 U.S.C. § 1051 et seq. (1946), https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter22
Lanham Act, 15 U.S.C. § 1051 et seq. (1946), https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter22;In re Celia Clarke, dba Clarke's Osewez, Serial No. 75,842,958 (T.T.A.B. 2001), https://ipmall.law.unh.edu/content/ttab-trademark-trial-and-appeal-board-1-re-celia-clarke-dba-clarkes-osewez-serial-no-758429.
“Hasbro Trademarks Play‑Doh’s Scent: Sweet, Slightly Musky,” AP News, May 18, 2018, https://apnews.com/general-news-da4c62e7e9ac4b58bd824f942f0710cb.
In re Celia Clarke, dba Clarke’s Osewez, Serial No. 75,842,958 (TTAB 2001), University of New Hampshire Franklin Pierce IP Mall, https://ipmall.law.unh.edu/content/ttab-trademark-trial-and-appeal-board-1-re-celia-clarke-dba-clarkes-osewez-serial-no-758429.
Ibid; “Hasbro Trademarks Play‑Doh’s Scent,” AP News, 2018.
Fross Zelnick Lehrman & Zissu, “USPTO: Registration of Non‑Traditional Trademarks,” October 12, 2022, noting Verizon’s “flowery musk scent” for a Verizon store (U.S. Reg. No. 4,618,936), https://www.frosszelnick.com/uspto-registration-of-non-traditional-trademarks/; Mark Wilson, “Why Verizon and United Airlines Are Trademarking Smells,” Fast Company, April 14, 2015, https://www.fastcompany.com/3045077/why-verizon-and-united-airlines-are-trademarking-smells/.
Lauren E. Dineen, “Making Sense of the Nonsensical: A Look at Scent Trademarks and Trade Dress Protection,” IPWatchdog, 2017, https://ipwatchdog.com/2017/02/02/making-sense-scent-trademarks-trade-dress-protection.
Ibid.
Hannah D. Baader, “Toward a Scented Jurisprudence,” Illinois Law Review Online (2025), https://illinoislawreview.org/online/toward-a-scented-jurisprudence.
Laura E. Guss, “The Case for Chemically Standardized Nontraditional Scent Trademarks,” Marquette Intellectual Property Law Review 27 (2024): 1–42, https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1041&context=ipilr.
Emilie A. Tillman, “A Scent of Hesitation: Navigating Ambiguity with Scent Trademarks,” Journal of High Technology Law (Suffolk University), October 15, 2024, https://sites.suffolk.edu/jhtl/2024/10/15/scent-of-hesitation/.
Aubrie L. Brewer, “Comparative Analysis on Registration of Smell Mark,” International Journal for Innovative Research in Technology (2025), https://ijirt.org/publishedpaper/IJIRT187904_PAPER.pdf.