5 Steps To Register A Scent Trade Mark

George Raptis

• 4 May 2023
• 15 May 2023
• 5 min read

If you use a distinctive smell to distinguish your business’s goods or services, you can register your scent trade mark with IP Australia. For example, the eucalyptus scent is a trade mark for golf tees. Whilst it is not impossible to register a scent trade mark to protect your brand, it can be pretty difficult. For this reason, you should consider the following five steps to register a scent trade mark carefully.

Identify Your Scent Trade Mark

A registered trade mark gives you the exclusive right to use, license and sell your trade mark. This means that you can take legal action when someone misuses your scent mark. A standard trade mark provides you with 10 years of protection, which you can renew indefinitely.

To qualify as a trade mark, the scent must be a unique or distinctive smell that is associated with your business’ particular good or service. For this reason, consider whether your scent can distinguish your business’ goods and services by asking yourself these questions.

Is Your Scent the Natural Scent of Your Product?

Generally, the natural scent of a product will have no inherent adaptation capable of distinguishing your goods. For example, the scent of cedar for timber products is merely a natural attribute of the goods. In this sense, the smell of cedar refers to the good, not the trade source (i.e. your business).

Is Your Scent a Masking Scent?

Some business owners use scents to mask unpleasant natural smells in their goods. For example, many domestic cleaning products use lemon to mask the smell of bleach and other chemicals. In this instance, the masking scent serves a purely functional purpose rather than distinguishing the good from others in the market.

Is Your Scent Common To Your Industry?

Scents that make a product more attractive but are familiar to your trade are also unlikely capable of distinguishing your business’ goods from others. For example, disinfectants might contain the scent of pine that does not serve the functional purpose of masking other scents. Nevertheless, the pine scent is unlikely to indicate the goods’ trade origin, considering most manufacturers use the same fragrance in their products.

Represent Your Scent Graphically

It would be easier to attach a sample of your scent to your trademark application, but this is not possible (although you may need to provide a sample during IP Australia’s examination process). So instead, you must provide a clear and accurate verbal description of the scent you will enter to endorse your application. For example, “the scent of pine”.

One of the difficulties with describing a scent is choosing a clear description. Unlike a shape or sound, you cannot see or hear a scent. Therefore, your graphical representation must be clear so that an ordinary person can identify the scent trade mark.  

Classify Your Trade Mark

When you register a trade mark with IP Australia, you must select the goods and services you wish your trade mark to protect. To ensure that your scent trade mark comprehensively protects your business’ goods and services, you should search the Trade Mark Classification Search.

The Trade Mark Classification Search categorises common goods and services into 45 classes. Classes 1 to 34 contain goods, and classes 35 to 45 contain services.

To use the Trade Mark Classification Search, you should enter keywords that describe the nature of your business’s goods and services and how your customers recognise your business.

Whilst it is easy to fall into the trap of including too many classes in your application to gain maximum protection, this is unnecessary and costly. Ultimately, you want to select the most relevant classes that provide adequate protection.

Conduct a Trade Mark Search

IP Australia is unlikely to register a trade mark similar or identical to an existing mark. For this reason, you should search the Australian Trade Marks Online Search System to see if a similar or identical scent trade mark exists.

However, a quick scan of the Register will reveal that there are few registered scent trademarks. Whilst you may need help discovering a similar or identical mark, the fact that only two scent trademarks are currently registered in Australia reveals how difficult it can be to obtain registration for scents. 

Register Your Trade Mark With IP Australia

Once you complete the steps above, consider lodging a trade mark application with IP Australia via its online services platform. In your application, you must provide:

• your details, including contact address;
• the graphical representation of your trade mark;
• the classes of goods and services you intend to apply for; and
• the filing fee.

Key Takeaways

If a scent can distinguish your business’ goods from others, you can obtain trade mark registration to protect your intellectual property. To register a scent trade mark, you should:

• identify whether a registerable scent trade mark exists;
• provide a verbal description of your scent trade mark; 
• classify your mark in the appropriate class or classes; 
• conduct a trade mark search to ensure someone has not already registered your scent trade mark; and 
• file a trade mark application with IP Australia.

If you have further questions about registering a scent trade mark, our experienced trade mark lawyers would be happy to assist. Call us on 1300 657 423 or complete the form on this page.

Frequently Asked Questions