Is it possible to register a scent trademark, create your own scent, and protect it from competitors? Scent marketing is one of the latest trends in business, as smell is one of the five senses that is most easily remembered. Especially in the cosmetics sector, the scents of stores and products play a very important role in attracting customers.
Alejandro Alonso, a partner in the commercial law department, addresses this issue in his article for Revista VPC. Currently, the "EUIPO (European Union Intellectual Property Office) does not consider it possible to register scent trademarks". However, in the United States it is possible, but “it must meet two requirements: first, it must be used or intended to be used in commerce, and second, it must be distinctive and identify a product from a specific manufacturer.”
The first case, as explained by our commercial lawyer, was Re Celia Clark: “the registration of the scent trademark for her sewing threads was accepted, with the TTAB (Trademark Trial and Appeal Board) arguing that the applicant had managed to get her sewing threads recognized by consumers and distributors as hers because of their distinctive smell.”
In the European case, our lawyer explains: "even though it can be demonstrated that a smell is a sign that serves to distinguish a specific product, the problem arises with the objective representation of the sign before the EU Trademark Registry. For such representation, Article 3.9 of Implementing Regulation (EU) 2018/626 expressly excludes the possibility of submitting samples or models to adequately represent the trademark to be registered."
If you would like further information, please do not hesitate to contact our office by calling 91.345.48.25 or sending an email to info@cecamagan_bs5.com
