If you smell, what IP is cooking?

Firstly, I would like to thank the great Dwayne Johnson for the inspiration behind the title of this blog, but alas, we are not talking about WWE today. Instead, we are looking at the more profound topic regarding the intellectual property rights of smells and scents.

Have you ever smelled something and instantly recognised what brand or product it comes from?

Perhaps it’s your favourite perfume, or walking into a particular golden arched restaurant, or even a product we all played with as a kid (Play-Doh).

Although there are several smells that we recognise and associate with particular products and brands, very few enjoy legal protections. So why is this?

The big hurdle that smells, scents, and flavours all encounter is that trade marks must be represented visually. Bottling up a sample will fail as the smell will disperse over time. Similarly, providing the formula of a smell won’t pass the smell test as someone could create that smell using a different method.

Can you trade mark a smell or scent in the UK?

Technically, yes, you can trade mark a smell. However, registering a smell or scent as a trade mark is so difficult that there are only two in the UK, both of which were successfully applied in 1994. They are:

1. Dart feathers that smell like bitter beer
2. A floral fragrance that is reminiscent of roses applied to road vehicle tyres

Further afield, there are currently no active registered scents with the EU, and Australia has only granted one for “eucalyptus-scented golf tees”.

Even in America, there are currently less than a dozen active registered scent trade marks. The most recent example is Hasbro obtaining a trade mark for the smell of Play-Doh in 2018, based on a written description of “sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough”.

I’m not convinced that obtaining a mark in this manner would be possible in the UK or the EU. The key to registering a mark in these jurisdictions is representing your mark in a clear, precise, objective, accessible, intelligible, and durable way.

Still, it’s understandable why businesses are so keen to try and secure rights to smells and scents. They are such a powerful tool to elicit a memory or response from consumers, even more so than images. For example, think about the smell of fresh-cut grass and the memories it evokes. Or, for the tennis players out there, that distinct smell when you open a new tube of tennis balls. Scents are so powerful that the ‘new car’ smell is often bottled and sprayed into second-hand cars to give the consumer the feeling that they are buying a new car. Of course, no registered smells are necessarily better than regular aromas; they just have better lawyers.

As always, Briffa is on hand to help with all things trade marks. Please do not hesitate to contact us at info@briffa.com or on 0207 288 6003 for a free consultation.