Trademarking The Intangible: A Study of the Legal Viability of Smell Marks

Abstract

Olfactory trademarks, a category of non-traditional marks, rely on distinctive scents to identify and differentiate goods or services, leveraging the emotional impact of smell to strengthen brand recognition. This paper examines the legal frameworks, challenges, and commercial significance of such marks across major jurisdictions, including the United States, European Union, Australia, and India. In the U.S., the Lanham Act permits registration, with landmark cases such as In re Clarke and In re Hasbro demonstrating recognition of inherent and acquired distinctiveness. The U.S. system accepts detailed written descriptions, reflecting a more flexible approach. In contrast, the EU requires graphical representation that is clear, precise, and durable, as established in Ralf Sieckmann v. Deutsches Patent- und Markenamt, which has restricted registrations. Australia’s Trade Marks Act 1995 allows scent marks but lacks precedent, while India’s Trade Marks Act 1999 theoretically accommodates them but faces regulatory and practical limitations. Key challenges include subjective scent perception, difficulties in proving distinctiveness, and enforcement obstacles due to the absence of standardized scent analysis. Despite these barriers, sensory branding is growing, with non-traditional trademark applications increasing 15% annually (WIPO, 2015–2023). Case examples such as Singapore Airlines’ trademarked cabin scent highlight olfactory trademarks’ potential in shaping consumer experience and brand differentiation.