By Hansen Tao
Introduction: From Visual to Sensory Branding
In a world where consumer experience is increasingly multi-sensory, brands are no longer defined only by words or logos. Sound marks, motion marks, color combinations, and even scents are now part of how companies express identity and evoke emotion.
While these non-traditional trademarks have long been debated in international trademark law, the discussion has recently gained renewed importance in China. As China deepens its participation in international trade frameworks such as the CPTPP, questions arise: Can a scent be a trademark? And if so, how can examiners assess its distinctiveness and protectability?
What Is a Scent Trademark?
A scent (or smell) trademark refers to a distinctive odor used to identify the source of goods or services. Unlike visual marks, a scent engages the consumer’s olfactory memory, the strongest link to emotional recognition.
For example, the smell of bubble gum in sandals or fresh flowers in embroidery thread has been successfully registered in the United States.
The United Kingdom once granted registration to rose-scented tires and beer-scented darts, proving that olfactory branding is not entirely theoretical.
However, globally, successful registrations remain rare. Most applications fail not because the scent lacks creativity, but because it is difficult to describe, represent, and examine within traditional trademark systems.
Why Are Scent Marks So Difficult to Register?
The challenges arise on three levels: legal definition, technical representation, and evidentiary assessment.
(1) Legal Definition: What Counts as a “Sign”?
While TRIPS (Article 15) recognizes any sign capable of distinguishing goods as a potential trademark, most national systems still implicitly assume visual representation.
The European Court of Justice’s Sieckmann case (2002) established that a scent must be represented “clearly, precisely, self-contained, and durable”, a standard nearly impossible for odors.
As a result, most “smell marks” have been rejected for lack of an acceptable “graphical representation.”
(2) Technical Representation: How to Depict a Smell
Different jurisdictions have experimented with solutions:
The EUIPO requires a clear visual depiction or precise written description.
The U.S. accepts verbal descriptions and requires evidence of acquired distinctiveness.
- Australia allows scent samples but demands detailed written explanation.
Despite flexibility, no system has yet found a universally satisfactory way to encode olfactory data for consistent examination.
(3) Evidentiary Issues: How to Prove Distinctiveness
Examiners must assess whether a scent actually identifies commercial origin rather than performing a functional or aesthetic role.
For example, the natural smell of leather or perfume’s own fragrance cannot be protected, as they are inherent to the product itself.
The Chinese Perspective: Room for Future Recognition
(1) A Legal Opening
Article 8 of China’s Trademark Law (2019 revision) states that any sign capable of distinguishing goods may be registered, including “words, graphics, letters, numerals, three-dimensional symbols, color combinations, and sounds,” followed by the open-ended phrase “and other elements.”
That final phrase (“以及上述要素的组合等”) leaves the door slightly open for non-visual marks, including scent trademarks.
(2) Legislative Context
China’s trademark system has gradually expanded its definition of registrable marks:
- 1982: Only words and graphics
- 2001: Added letters, numerals, color combinations, and 3D marks
- 2013: Introduced sound marks and removed the visual requirement
This evolution suggests that further inclusion of olfactory, motion, or holographic marks is a natural progression, especially as China aligns its IP standards with international treaties like the CPTPP, which encourages the registration of scent marks.
(3) Practical and Technical Barriers
Despite legislative openness, significant hurdles remain:
Lack of technical framework to store or reproduce scent samples in electronic filing systems;
Difficulty in maintaining long-term stability and reproducibility of scent evidence;
Absence of examiner training and guidance specific to non-traditional marks.
For now, China’s IP offices and courts remain cautious, preferring to develop experience through more manageable categories like 3D and sound marks.
Building a Framework for Non-Traditional Mark Examination
If China and other emerging IP jurisdictions wish to embrace olfactory or other sensory marks, several practical steps can be taken:
(1) Establish Flexible Representation Guidelines
A combination of chemical formulae, verbal description, and digital reference data could be accepted as an integrated form of representation.
Rigid visual requirements should give way to technological adaptability, acknowledging future data formats such as digital scent mapping.
(2) Strengthen Examiner Training and Technical Infrastructure
Trademark offices should integrate AI-based sensory comparison tools and create databases for non-traditional marks (similar to WIPO’s global brand databases).
This would allow consistent examination and prevent overlap with functional or descriptive product attributes.
(3) Encourage Pilot Cases and Academic Collaboration
Pilot applications, for example, scent marks related to traditional Chinese products (herbal ointments, aromatic balms, incense), could provide valuable jurisprudential experience and establish practical criteria for olfactory distinctiveness.
Conclusion: Beyond Sight and Sound
The rise of non-traditional trademarks reflects the future of experiential branding, where the smell of a product, its movement, or even its texture may serve as a badge of origin.
China’s legal framework already shows readiness to evolve. The next stage lies in building practical, technology-driven examination rules and reshaping legal perceptions of what a “mark” can be.
Photo by Mindaugas Norvilas on Unsplash