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Can you trademark a smell?

Founder & Trademark Attorney

In principle, yes, though smell marks are among the most difficult types of trademark to register and are accepted in only a limited number of jurisdictions.

The smell must be distinctive, non-functional (i.e., it cannot be a smell that is inherent to the product itself), and must identify the commercial source of the goods or services. The main practical obstacle is representation: most IP offices require a trademark to be represented precisely in the register, and describing a smell with sufficient precision has historically been a significant barrier.

The US permits smell marks and has granted a small number of registrations. The EU does not currently accept them, as the EUIPO requires graphical representation that is precise and self-contained, which a smell description has not been found to satisfy.

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