Yes, it’s possible to trademark a scent—but only in rare cases. The U.S. Patent and Trademark Office (USPTO) allows scent trademarks when the smell serves as a source identifier rather than a functional feature of the product.
So, what does that mean?
According to the Trademark Manual of Examining Procedure (TMEP), “The scent of a product may be registrable if it is used in a nonfunctional manner.” This means the smell can’t be essential to the product’s purpose or use.
For instance, you can’t trademark the scent of perfume or an air freshener—the scent is the product. Those would be considered functional and therefore not eligible for trademark protection.
A well-known case, In re Clarke (1990), set the stage for scent trademarks when the applicant successfully registered the scent of plumeria blossoms for “sewing thread and embroidery yarn.” The fragrance didn’t affect how the thread performed—it simply served as a unique brand identifier, helping customers recognize the product by smell.
Since then, a few other brands have followed suit. Storm Products, Inc. registered the smell of mint for bowling balls (RN 6497227), and Grendene S.A. secured a registration for the scent of bubble gum used in sandals and flip-flops (RN 4754435).
These examples show that while scent marks are rare, they are possible when the fragrance serves no functional purpose and consumers associate it directly with a single source.
Scent marks face an uphill battle at the USPTO. The TMEP notes that “the amount of evidence required to establish that a scent or fragrance functions as a mark is substantial.”
You must show that consumers recognize the scent as pointing to your brand—not just as a product feature. This is known as acquired distinctiveness, or “secondary meaning.”
For example, in In re Pohl-Boskamp GmbH & Co. (2013), the applicant tried to register a peppermint scent for pharmaceutical nitroglycerin formulations. The USPTO rejected it, finding the scent was common in the industry and perceived more as a product attribute than a brand identifier.
You can trademark a scent—but only if it’s nonfunctional and distinctive enough to serve as a brand identifier. It’s a challenging path requiring substantial proof, but for brands with a unique, recognizable scent, it can be a powerful form of trademark protection.
Need help exploring whether your scent or product feature qualifies for trademark protection?
TradeMark Express provides comprehensive trademark research and application assistance to help you determine your best path forward.
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