One of the most important attributes of a brand of perfume is its fragrance. However, this attribute is one of the most challenging aspects that are difficult to trademark. The process of trademarking a scent is highly complicated by the requirements of graphical representation and functionality of doctrine. This article seeks to explain why it is challenging for perfume manufacturers to trademark the scent of their perfume. The article focuses on the requirements of graphical representation and the functionality of the protected feature, as well as the nuances of the court practice in India, the USA, China, Japan, and the EU.
I. Statutory Requirements of Representation of Non-Traditional Marks
Section 2(1) (zb) of the Indian Trade Marks Act, 1999, defines the word “trademark” as any sign capable of being represented graphically and distinguishing the goods or services of one person from those of the others. In case of non-traditional marks this definition turns into significant challenges, which tend to be even more prominent when it comes to olfactory marks. However, the smell can not be captured the same way one would capture a picture or text. A person can give the formula, describe the smell, or give a sample, but none of these will give a proper representation of that specific scent.
II. The Sieckmann Case and the Requirements of Representation of a Scent
The case of Sieckmann v. Deutsches Patent- und Markenam is the leading authority on the requirements of graphical representation of a scent. The applicant attempted to register a smell of balsamically fruity with a hint of cinnamon. The description of the scent was provided, as well as a sample. According to the European Court of Justice, none of the provided forms of graphical representation were provided. The chemical formula described the substance, not the smell. The description was too vague, and the sample was not reliable enough.
The Court established several requirements for the graphical representation of a scent. Among them were clarity, precision, self-contained presentation, accessibility, intelligibility, durability, and objectivity.Several decisions from the European courts demonstrated that scent marks pass the graphical representation test exceptionally rarely. For example, Eden SARL’s application, which sought to register the scent of ripe strawberries, was rejected. Eden also provided an image of a strawberry, but the Court held that the scent of different varieties cannot be considered to have sufficient objectivity.
According to the case law, the mark should be objective and not dependent on individual perceptions. For example, the Office for Harmonisation in the Internal Market (OHIM) accepted the application for a scent of freshly cut grass for tennis balls. The smell was considered to be clearly identifiable. The Court noted that the scent was not an inherent characteristic of tennis balls. These two facts are essential because similar reasoning could be used to register the scent of perfume.
Meanwhile, the US jurisprudence takes a slightly different approach to the registration of non-traditional signs. According to the in re Celia Clarke, dba Clarke’s Osewez case, the Trademark Trial and Appeal Board of the US Patent and Trademark Office accepted the registration of a fresh and flowery scent of plumeria flowers. The scent was applied to sewing thread and embroidery yarn and thus became the first scent trademark.
The TTAB rejected the argument that the trademark was purely ornamental. The reasoning was that the scent of plumeria flowers did not in any way decorate the thread or yarn, thus distinguishing this case from the cases of inherent characteristics. The Board held that the scent was objectively ascertainable and did not appear to be in any way related to the product’s use or purpose.
III. Trademark Protection and the Functionality Doctrine: The Essence of Perfume
Even if a company successfully satisfies the requirements of graphical representation, a trademark owner faces another substantial barrier when it comes to registering a scent. The functionality of doctrine prevents a trademark owner from registering a feature that serves a utilitarian or aesthetic purpose.
The primary reason for the existence of functionality doctrine is the prevention of the exploitation of monopolization practices by trademark owners. Utilitarian functionality is associated with the features that are necessary for the use or purpose of a product. Aesthetic functionality refers to the elements that serve to improve the commercial appeal of the product.
Nevertheless, the US Trademark Manual of Examining Procedure provides that a trademark can only be registered if it is used in commerce in a nonfunctional manner.The functionality doctrine can be easily distinguished in the cases regarding the trademark of scent. For example, the scent of plumeria flowers that were applied to sewing thread and embroidery yarn does not appear to be related to the purpose or use of the thread. In a similar vein, the scent applied to tyres does not serve a purpose or constitute an inherent characteristic. The scent of perfume constitutes the essence of the product. It is impossible to register it as a trademark due to its functionality.
The inability to register the scent of perfume is related to the fact that a trademark owner cannot register a feature that is essential to the product’s use or purpose. According to various commentators, the smell of perfume or air freshener cannot be protected by a trademark, since it is an essential characteristic of the product. For example, registration of the scent of Chanel No. 5 was refused in the UK on the grounds that it was the essence of the product, not the indicator of its geographical origin. At the same time, it is evident that the scent becomes valuable to the trademark owner due to its association with the brand. Therefore, there is a paradox in the inability to register it as a trademark.
IV. India’s Developing Jurisprudence on the Registration of Scent Trademarks: from the Draft Manual to Sumitomo’s Rose
India’s jurisprudence on the registration of non-traditional trademarks, including scent marks, is developing. The Trademarks Registry’s 2009 Draft Manual provided that the marks on goods capable of being graphically represented and capable of distinguishing the mark from those of other traders could be registered.
For several years, there were no scent trademarks registered in India at least until November 21, 2025, when the Controller General of Patents, Designs and Trade Marks accepted for advertisement India’s first olfactory trademark. Sumitomo Rubber Industries Limited applied for a trademark that protects the scent of rose for vehicle tyres. Notably, the application used a multi-dimensional olfactory map to describe the scent.
The map depicted the scent of rose in terms of floral, fruity, woody, and minty notes. The Trade Marks Registry accepted the application because it found it satisfied the requirements of clarity, precision, accessibility, intelligibility, objectivity, and graphical representation. However, it is necessary to note that commentators questioned the compliance with the requirements of Section 2(1)(zb).
However, so far, there is no case in India that relates to the scent of perfume. In other words, in India, as in other jurisdictions, the functionality doctrine prevents the registration of the scent of perfume. Therefore, trademarks on the scent of perfume still cannot be registered, as its essence cannot be separated from the product.
V. Alternative Trademark Protection for Fragrance Companies beyond the Scent Itself
Given the inability to register the scent of perfume, fragrance companies seek other ways of protecting their brands by relying on word marks and the distinctive appearance of the product packaging. Word marks are relatively easy to register since they do not raise the issues of graphical representation or functionality. The word marks on a brand name or product name can be registered.
A three-dimensional trademark can be registered that protects the unique packaging of the product. In India, three-dimensional trademarks are explicitly protected by the Trade Marks Act, 1999. It is important to note that three-dimensional trademarks can only be registered if they meet the requirements of distinctiveness. In 2022, the USPTO preliminarily denied a trademark application for the rectangular, bevelled shape of the Chanel No. 5 bottle. The reason was that the distinctive appearance of the product was too generic, and therefore failed to meet the requirements of distinctiveness. The USPTO also held that the inherent distinctiveness of a mark was not established due to the lack of proof of acquired distinctiveness.
In 2022, the Supreme Court of Lithuania ruled on the appeal concerning an international registration of the trademark associated with the shape of the Chanel No. 5 bottle. According to the ruling, when determining the distinctiveness of the trademark, the Supreme Court took into account the similarity of bottles on the market.
However, the appeal concerning a three-dimensional trademark on Chanel No. 5 was not universally popular. For example, in 2011, Japan’s Intellectual Property High Court overturned the Patent Office’s decision to reject the three-dimensional trademark application. The court found that the torso-shaped bottle had acquired the ability to identify the author among perfume traders and customers.
Thus, it can be concluded that three-dimensional trademarks provide an additional way of protecting the brand. However, their use requires extensive consideration of the distinctiveness of the product packing.
Fragrance companies rely on trade dress and unfair competition laws to protect their brands. Protection of trade dress is especially relevant when a company is unable to register a trademark. For example, in the Chinese case-law, there are examples of successfully registered trade dress trademarks. According to the 2020 case concerning the unfair competition, the courts ruled in favour of the plaintiff despite the fact that the application for a three-dimensional trademark on the trademark of the bottle had been rejected by the Beijing High Court. The trade dress was also protected under the principle of unfair competition. In other words, the requirements for protecting trade dress were much less stringent than those for three-dimensional trademarks. Similar opportunities are also available in India: despite the impossibility of registering a scent trademark, the passing off action might protect the trade dress of the product.
VI. Conclusion
The problems associated with the trademark protection of the scent of perfume is multifaceted. On the one hand, there is a requirement of graphical representation, the fulfillment of which is complicated by the separation of scent and smell. Given the fact that the scent of perfume is an integral part of the product, this doctrine is especially relevant to the trademark protection of perfume. The difference between the scent of perfume and the scent of perfume applied to tyres or thread becomes apparent.
While the latter can be registered as a trademark, the scent of perfume cannot be registered due to its functionality. The impossibility to register the smell of perfume leads fragrance companies to other ways of protecting the brand. Unfair competition laws, along with the law of trademarks and passing off, are also available in India.
THIS ARTICLE IS WRITTEN BY TANISHA SAHU FROM SISTER NIVEDITA UNIVERSITY
REFRENCES :
The Trade Marks Act, No. 47 of 1999, § 2(1)(zb) (India).
Id.; see also S. Sheikh, Understanding the Legal Landscape of Non-Conventional Trademarks in India, 6(1) Digital Law Journal 8 (2025).
Agreement on Trade-Related Aspects of Intellectual Property Rights art. 15.1, Apr. 15, 1994, 1869 U.N.T.S. 299.
Directive (EU) 2015/2436, art. 3; Regulation (EU) 2017/1001, art. 4; see also Patentbox, Scent Trademarks and Taste Trademarks: Can You Register a Smell or a Flavor? (2026).
Case C-273/00, Sieckmann v. Deutsches Patent- und Markenamt, 2002 E.C.R. I-11737.
see also Dennemeyer, The Scent of a Trademark: Removal of Graphic Representability Requirement.
Dennemeyer, supra note 6.
Patentbox, supra note 4.
Case T-305/04, Eden SARL v. Office for Harmonization in the Internal Market (OHIM), 2005 E.C.R. II-4705; see also Dennemeyer, supra note 6.
Vennootschap onder Firma Senta Aromatic Marketing’s Application, Case R 156/1998-2, OHIM Bd. App. (1999); see also Rajiv Suri, Scent Trademark Registration, Trademark Lawyer Magazine (2022).
In re Celia Clarke, d/b/a Clarke’s Osewez, 17 U.S.P.Q.2d 1238 (T.T.A.B. 1990).
see also Suri, supra note 10.
See Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 850 n.10 (1982); Lexplug, Functionality Doctrine (Utilitarian vs. Aesthetic).
U.S. Patent & Trademark Office, Trademark Manual of Examining Procedure § 1202.13; see also TM Express, Can You Trademark a Scent?
Suri, supra note 10.
Trade Marks Registry, Draft Manual of Trade Marks Practice and Procedure (2009) (India); see also The Case of Unconventional Trade Marks—Does the Trade Marks Act, 1999 Need Reform?, SCC Online Blog (2023).
Sumitomo Rubber Industries Ltd., Trade Mark Application No. 5860303 (India); see also Branding by Scent—Landmark Registration of India’s First Smell Mark, Mondaq (2025).
Intepat, Smell Trademarks: The New Rage in Trademarks.
Redefining the Boundaries of Protection: The Olfactory Mark Registration and the Need to Revisit Section 2(1)(zb), Trade Marks Act, 1999, SCC Online Blog (2026).
Scent Without Sense: Why India’s Trademark Law Might Not Be Ready for Olfactory Marks, LiveLaw (2026).
The Trade Marks Act, No. 47 of 1999, § 2(1)(zb) (India).
Chanel Aiming to Register the Shape of No. 5 Bottle as Trademark, The Fashion Law (2022).
Chanel Is Reminded: Trademark Territoriality Still Matters, IPKat (2022).
Smell of Success for Three-Dimensional Trademark, International Law Office.
Chanel Prevails in Unfair Competition Case over Its No. 5 Perfume Bottle in China, Fashion, Law & Business.
Id.; see also [China IP] Chanel N.5: Bottle Shape Is Protected, Packaging No, Lexology.
