The Legal Challenges of Protecting Olfactory Trademarks in the European Union before going to India

Have you ever found yourself suddenly stopping in your tracks because a smell has triggered a memory? It's much like the effect of hearing the lyrics of a familiar song: as soon as they play, you can't help but sing along. Scents carry a powerful emotional component, they can instantly bring back past experiences and, in some cases, become a valuable business asset by associating a specific aroma with a particular company.

This may involve the distinctive scent of a product (as in the perfume industry) or simply the use of fragrance to attract customers into stores, an increasingly common practice in the retail sector.

It is well known that companies invest in various strategies to differentiate themselves from competitors, and one of these is scent marketing. This approach involves the deliberate use of signature scents in stores, products, and other brand touchpoints. Because businesses invest heavily in creating and implementing these unique aromas, the need to legally protect this asset naturally arises.

You might assume that, given how many companies rely on scent marketing, protecting these olfactory elements would be straightforward. However, in Europe, this remains a rather complex issue, particularly when it comes to securing protection through trademarks.

The idea of protecting a scent as a trademark is, at first glance, intuitively appealing, especially in an era where sensory branding is a powerful commercial tool. Yet, despite legal reforms and increasing business interest, olfactory marks remain exceptionally difficult to register in the European Union. Understanding why requires a closer look at how EU trademark law has evolved and how the courts have approached the issue.

Background

Under the previous EU trademark regulations, a trademark was defined as ‘signs capable of being represented graphically, particularly words, including personal names, designs, letters, numerals, the shape of goods or of their packaging, provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings’.

This meant that, in order to be considered distinct, the sign had to be represented graphically. Consequently, olfactory trademarks (as well as other non-traditional trademarks, such as tactile trademarks) were excluded from protection because they could not be represented graphically.

Despite the obstacle, companies still tried to register smells as trademarks. One of the most famous attempts ended up becoming a landmark case: Sieckmann (C-273/00).

In this case, the applicant wanted to register the scent of methyl cinnamate, a fragrance described as “fruity balsamic with slight hints of cinnamon.” To convince the trademark office, he submitted three things:

• the chemical formula of the compound,
• a written description of the smell, and
• a physical sample stored in a small container.

Pretty thorough, right?

The Court of Justice didn’t think so. In this sense, the Court examined whether an olfactory sign could be represented graphically through any of the methods proposed by the applicant: a chemical formula, a verbal description, or the deposit of a scent sample. Each of these was analysed in detail and all were ultimately rejected.

First, the Court found that a chemical formula is unintelligible to the average person and therefore fails to serve as a clear or accessible representation of the smell. More importantly, it does not depict the odor itself, but merely the substance that produces it. As a result, it is not sufficiently clear, precise, or intelligible to qualify as a trademark representation.

Second, even though a verbal description may appear graphic in form, it still lacks the clarity, precision, and objectivity required. Descriptions of scents inevitably involve a degree of subjectivity and variation, preventing them from functioning as an exact and reliable representation.

Third, the deposit of a scent sample does not constitute a graphic representation at all, and the Court emphasized that such samples are not stable or durable. Odors may degrade over time, meaning that the sign would not remain consistent throughout the life of the registration.

Finally, the Court underlined that if none of these elements meets the representation requirement individually, their combination cannot solve the problem. A chemical formula, a written description, and a scent sample, whether separately or together, still fail to achieve the clarity and precision mandated by trademark law.

This ruling set out the criteria for a trademark's representation: it must be clear, precise, self-contained, easily accessible, intelligible, durable and objective.

The Present Situation in the EU

The landscape changed with the introduction of the Directive (EU) 2015/2436 and Regulation (EU) 2017/1001, which abolished the requirement for graphical representation.

For the first time, trademarks could be represented through any technology capable of providing a clear and precise depiction of the sign, digital files, audio recordings, multimedia formats, and more.

This reform was a significant paradigm shift, at least formally.
In theory, it opened the door for non-traditional marks, including scents.

However, it did not eliminate the underlying requirement that the representation of the trademark must enable the public and authorities to determine the exact scope of protection. And that is where olfactory marks still fail.

Even referring to the EUIPO guidelines does not help, as they specifically state that it is currently impossible to register these non-traditional trademarks using the technology available today. 

Conclusion

The EU has formally modernized its trademark system, removed outdated formalities and adopted a more technologically neutral framework. However, despite these advances, protecting olfactory marks remains practically impossible. The barrier is no longer legal; it is technological. Until a reliable, objective and universally accepted method of representing scents is developed, olfactory trademarks will continue to exist more in theory than in practice.

However, this does not mean that such protection is impossible elsewhere. In countries such as India, for instance, the trademark system is more flexible and registration of scent marks, while still exceptional, is not entirely out of reach. Given the strategic value of securing distinctive non-traditional assets, SMEs may find opportunities in jurisdictions with more adaptable approaches to olfactory branding.

Nevertheless, expanding into markets such as India requires a solid understanding of the local IP framework. For EU SMEs, it is essential to assess these challenges carefully and seek the guidance of an experienced IP professional before taking any steps abroad. And if you are unsure where to begin, our Helpline is here to support you with free and fast consultations.