Can I trademark a scent?
The short answer is yes, but it can be very difficult. A scent mark is considered a nontraditional or non-conventional trademark. This category covers a broad spectrum of marks which includes any type of trademark that does not currently belong to a conventional category. Conventional marks are words, names, logos, and the like. Scents, sounds, colors, packaging – things like this fall under the non-conventional mark category. Non-conventional marks are not per se more difficult to register as trademarks, but they pose unique challenges not encountered when registering a more traditional mark.
One of the largest complications in attempting to register a scent mark is that the perception of odor can vary from person to person. This subjectivity can lead to considerable argument when deciding whether the scent actually functions as a trademark. After all, trademarks are consistently used symbols that identify in a consumer’s mind the source of the product or service. Key to the ability to identify the source is that the mark be used consistently, or that the consumer experience the mark in a consistent way. If a scent can potentially vary each time it is experienced, a question is created as to whether it is sufficiently consistent so as to function as a trademark.
Another complication is whether the mark is functional. Functional portions of marks cannot be registered. This is most often seen with trade dress, where the Office refuses to protect portions of a product which are formed or shaped purely for functional reasons. This issue can arise with smell marks. For example, the distinct smell of a perfume cannot be protected with a trademark because it is a functional part of that particular perfume.