Rethinking Scent As A Tangible And Intangible Asset In Trademark Law
Abstract
The use of scent marks in trademark law has sparked an old question of the nature of scent in the law. The registration of a floral fragrance for tyres in India has proved that non-traditional marks can serve as a source of information about the commercial origin when it is distinctive and not functional. But it also raises a more fundamental concept question: Should a smell be considered only an intangible asset or does this physical material allow for a limited tangible characterization? The issue is explored in this article with the prism of trademark theory, the categorization of intellectual property assets by WIPO, and comparative jurisprudence of Europe and the United Kingdom. It states that the source-identifying function is what makes their use valuable in trademark law and not their chemical composition, even though they originate from physical chemical compounds, are measurable, can be preserved and reproduced. Therefore, scent marks are best considered as something that is not physical and has a tangible scientific basis. The author concludes that future advancements in sensory branding could necessitate the implementation of legal frameworks that take a more refined approach that retains the existing concept of tangible and intangible property while still acknowledging both aspects.
Introduction
Registering a ‘floral scent’ for tyres in India is a big step in the history of trademark law. Traditionally, trademarks have been a visual sign, whether in the form of a word, a logo, a symbol or a label. But, today, the branding process is increasingly sensory, with sounds, colours and aroma playing a great role in fostering consumer recognition. There is then the fundamental question of what exactly is the legal nature of a smell, when a scent mark is accepted?
The floral scent mark was registered by Indian Trademark Registry not only for its novelty but also for its distinctiveness and non-functionality. While evaluating the aroma, the following olfactory effect was used: floral, fruity, nutty, woody, pungent, sweet, minty. Four such classification systems illustrate that scents are not too abstract to be classified and described by objective parameters, contrary to the assumption that scents are too subjective to be trademarks. This scientific classification also reinforces the case for scent having physical properties that can be measured, and intangible brand properties.
WIPO Classification and The Nature of Scent Marks.
Generally, the World Intellectual Property Organization (WIPO) defines trademarks as intangible assets because their value is built on goodwill, reputation and business recognition associated with the trademark. IP rights differ from physical assets like land, inventory or machines in that they do not provide value when they’re in physical possession. The value of their lies in the unique rights of ownership they provide.
As per this framework, a scent mark is normally a non-tangible asset. A scent mark does not necessarily identify the chemicals (its composition) but rather a certain brand. The legal protection is thus attached to the distinctive identity that is communicated by the scent and not to the molecules that produce the scent.
However, scent marks are not the same as traditional trademarks in that they have a physical aspect. A smell is actually present because of the chemical compounds which are volatile and that interact with the receptors of the human nose to form the smell. The compounds can be identified, preserved and reproduced by scientific techniques. A scent is different from a logo, as it has a real material basis to it. The ‘tangible-intangible’ distinction is complicated by this property.
Is Scent Tangible, Intangible?
The most compelling reason for considering scent to be partially material is its materiality. All perfumes are created using a variety of chemicals. These compounds are storable, producible, transferable and testable. In commercial use, businesses dedicate large amounts of resources to creating brand specific fragrances that are a part of their brand. But a physical medium is not enough to make a trademark a physical asset. Though a company can own a formula, the trademark is granted because the consumers know the smell means a certain source of goods or services.
In this manner the 7-D olfactory framework is important for reasons other than trademark registration. If smells can be described on the basis of discernable sensory aspects and related to specific chemical composition, they have attributes typical for tangible phenomena. Their physical composition may be analysed, preserved and reproduced and their sensory profile may be documented with standardized descriptors. However, these physical attributes are not enough in themselves to create a commercial value in the scent mark. The value lies in the fact that consumers come to associate that smell with a specific source of products or services. Hence, the 7-D concept focusses on the duality of scent, scientific measurable and thus partially tangible, but also legally protected as it serves an identification purpose and is an intangible intellectual property asset.
Comparative analysis of Europe and UK
The European jurisprudence example depicts the challenges to protecting scent marks. In Sieckmann (C-273/00), the Court of Justice of the European Union, upheld a refusal to register a scent mark, on the basis of a chemical formula, a written description and a sample. The Court determined that trademark representations must be clear, precise, self-contained, easily accessible, intelligible, and objective and durable. The decision was that the current methods of registering scent marks were not meeting these requirements. The UK had a more conservative strategy. The most commonly cited case is the registration of the smell of fresh-cut grass for tennis balls. Though this was accepted as a fact, later events showed the practical challenges to reliably pinpointing and depicting smells. UK practice began to focus on certainty and objective representation, following Sieckmann.
The European position further developed after the reform of the requirements that strict graphical representation was removed. Despite this, it continues to be rare as there are still difficulties for applicants in being able to show accurate representation of these smells. Comparative experience indicates that the problem is not the existence of a tangible or intangible substance, but the ability to represent it and distinguish it from others with reasonable clarity, precision and certainty for purposes of securing exclusive rights.
Conclusion
Scent trademarks are disrupting traditional IP & branding perceptions. Smells do definitely have a physical basis as there are definite chemicals that can be identified which can be measured and reproduced. But the legal rights of a scent mark are not connected to this physical reality. Rather, it comes from the power of a smell to serve as a unique marker for the commercial source.
It is thus understandable that WIPO continues to classify trademarks as intangible assets. Though scents have real scientific properties, the advantages of using scents in trademark law are inherent in the notion of goodwill, reputation, and consumer association. Scent marks are intellectual property assets that exist only in intangible form, but are only realized in a tangible physical form. The evolution of sensory branding will raise more and more demands on courts and trademark offices to further develop this hybrid concept in such a way that the creative process is stimulated while at the same time the basic tenets of trademark law are observed.
References
World Intellectual Property Organization (WIPO), “India’s First Smell Mark: Sumitomo Rose-Scented Tires”. https://www.wipo.int/en/web/wipo-magazine/articles/indias-first-smell-mark-sumitomo-rose-scented-tires-89623
WIPO, Intellectual Property and Intangible Assets resources.
Sieckmann v Deutsches Patent- und Markenamt, Case C‑273/00, Court of Justice of the European Union.
Trademark Manual of Practice and Procedure (UKIPO).
Indian Trademark Registry developments relating to smell marks. https://patentpc.com/blog/the-legal-framework-for-smell-trademarks-what-you-need-to-know
“Olfactory Trademarks in Modern IP Regimes: A Comparative Study of Indian Law and International Approaches” (2025). https://www.ijllr.com/post/olfactory-trademarks-in-modern-ip-regimes-a-comparative-study-of-indian-law-and-international-appro
The Indian Express, “India Registers First Smell Trademark for Japanese Company’s Rose-Scented Tyre”. https://indianexpress.com/article/legal-news/india-registers-first-smell-trademark-for-japanese-companys-rose-scented-tyre-10385468
Asia Law, “Scenting the Future: How India’s First Smell Mark Application Aligns with Global Practice”. https://www.asialaw.com/NewsAndAnalysis/scenting-the-future-how-indias-first-smell-mark-application-aligns-with-global/Index/2475