Industrial property law has, for decades, protected words, logos, and even shapes as trademarks with unwavering consistency. Yet commercial reality — with its characteristically untamed inventiveness — routinely pushes beyond the boundaries of neatly cataloged categories. Scent trademarks and taste trademarks are a perfect example of an ambitious collision between human senses and the bureaucratic apparatus of legal protection. The outcome of that collision is, as one might expect, every bit as ambiguous as the subject matter itself.
Under Article 120 of the Polish Industrial Property Law Act of June 30, 2000, a trademark may consist of any sign capable of distinguishing the goods or services of one undertaking from those of another, provided it can be represented in the register in a manner that allows the subject matter of protection to be determined clearly and precisely. The critical phrase here is “any sign” — the legislator deliberately left the catalog of permissible forms open-ended.
EU regulations — in particular Directive (EU) 2015/2436 of the European Parliament and of the Council and Regulation (EU) 2017/1001 on the European Union trade mark — adopted the same approach. As a result, alongside traditional word marks, figurative marks, and combined word-figurative marks, the system of protection encompasses — at least in theory — sound marks, position marks, three-dimensional marks, hologram marks, multimedia marks, and even scent trademarks and taste trademarks, collectively referred to as non-conventional trademarks.
The landmark ruling on non-conventional trademark registration remains the 2002 judgment of the Court of Justice of the European Union in Case C-273/00 Ralf Sieckmann v. Deutsches Patent- und Markenamt. A German patent attorney attempted to register an olfactory mark described as a “balsamically fruity scent with a slight hint of cinnamon,” chemically identified as methyl cinnamate (the methyl ester of cinnamic acid). The application was accompanied by a chemical formula and an odor sample. The CJEU, however, found the entire documentation insufficient.
The ruling produced seven criteria that every effective representation of a trademark in the register must satisfy.
The sign must be:
The durability requirement eliminates odor samples — they inevitably undergo oxidation. The objectivity criterion, in turn, rules out descriptions that rely on subjective sensory experiences. A chemical formula, though ostensibly objective and precise, describes the chemical substance rather than the scent itself. The circle closes with mathematical elegance — and practical dead-endedness.
| Stage | Question / Action | YES Outcome | NO Outcome |
|---|---|---|---|
| 1 | Trademark application filed | Proceed to Sieckmann criteria assessment | — |
| 2 | Does the sign meet all 7 Sieckmann criteria? (clear, precise, self-contained, easily accessible, intelligible, objective, durable) |
Admitted to further registration | Refusal / discontinuation |
| 3 | Does the sign serve a distinctive function? | Trademark registration | Refusal / discontinuation |
| 4a | After refusal / discontinuation | Appeal available | |
| 4b | After registration | Protection for 10 years, renewable | |
In the entire history of the EU trademark system, one scent trademark has ever been registered. A Dutch company manufacturing tennis balls obtained protection for a mark described as “the smell of fresh cut grass” (EUTM 000428870). The Office found that this description was universally known and recognizable on a global scale, making it a sufficient representation under the applicable rules. Protection expired after the 10-year term due to non-renewal — which in itself seems like an eloquent commentary on the commercial significance of this achievement.
Case T-305/04 Eden v. OHIM illustrates the limits of admissibility. The applicant sought to register “the smell of ripe strawberries,” attaching a drawing of a red strawberry to the application. Refusal was inevitable — the strawberry is a product that naturally emits that very scent, making it impossible to demonstrate the mark’s independence from the goods. In other words, the smell of strawberry is an inherent characteristic of the strawberry itself, not a separate distinguishing sign.
In Poland, the Polish Patent Office discontinued proceedings concerning application Z.220307 filed in 2000, which covered “the scent of lily of the valley.” The inability to meet formal requirements sealed the application’s fate.
The UK trademark register proved somewhat more receptive to non-conventional ambitions. Unicorn Products Ltd. obtained registration for a mark described as “a strong smell of bitter beer” (UK 000020000234), applied to dart flights. The concept involved embedding microcapsules in the flights that release the scent upon contact with the dartboard — an attempt to transport the atmosphere of a British pub into the living room.
The United States boasts a richer registry of scent trademarks, dating back to 1990. The first registration covered the scent of plumeria blossoms for embroidery thread — a decision still considered a textbook example of demonstrating a scent’s independence from the product, since embroidery thread does not naturally emit any fragrance. The retail chain Flip Flop Shops, specializing in flip-flops, registered the coconut scent sprayed in its stores, effectively linking an olfactory shopping experience to its brand identity.
Taste trademarks represent an even more exotic corner of industrial property law. The sense of taste is, by its very nature, deeply subjective, culturally conditioned, and impossible to register objectively using currently available technical means. Case law consistently indicates that even the most detailed verbal description of a taste fails to meet the Sieckmann criteria — and alternative methods of representation remain in the realm of technological speculation.
EUIPO has never registered a taste trademark. The same situation persists in the vast majority of national registration systems. The fundamental problem lies in the very nature of taste, which — unlike sight or hearing — lacks a universally accepted, objective notation system capable of serving as a durable and unambiguous record.
| Method of Representation | Reason for Rejection | Assessment | Result |
|---|---|---|---|
| Verbal description | Subjectivity — each person interprets taste differently | ❌ | Refusal |
| Chemical formula | Describes the substance, not the taste as such | ❌ | |
| Sample | Lack of durability — the sample degrades over time | ❌ | |
| Conclusion: None of the available methods satisfies the 7 Sieckmann criteria — registering a taste trademark is practically impossible given the current state of technology. | |||
Industrial property law requires a trademark to perform a distinctive function — i.e., to enable consumers to identify the commercial origin of goods or services. Scents and tastes can perform this function in practice: customers recognize the characteristic aroma of a particular producer’s perfume, and whisky enthusiasts can identify a distillery based on its flavor profile. The problem, however, is that distinctiveness in the sensory sphere does not automatically translate into the ability to meet the formal requirements of registration.
Industrial property law protects not so much the sign itself as its representation in the register — and it is precisely at this point that the system reveals its structural inadequacy when it comes to sensory signs other than visual and auditory ones.
Advances in mass spectrometry, gas chromatography, and digital scent recording (so-called e-nose technology) may in the future provide tools enabling objective and durable representation of olfactory signs. Technologies for digitally recording taste profiles remain, for now, the domain of research laboratories rather than regulatory practice. Nonetheless, technological evolution will sooner or later force legislators to confront the question of whether existing formal frameworks are sufficient — or whether they require fundamental reconstruction.
Registering scent trademarks and taste trademarks remains a task that industrial property law resists with a consistency worthy of a better cause. The seven Sieckmann criteria — though rational from the standpoint of legal certainty — create a barrier that current technology cannot overcome for an entire class of sensory signs. The registration successes achieved so far are isolated and largely anecdotal.
Businesses seeking to protect their olfactory or gustatory signs should consider alternative instruments — including trade secret protection, know-how, or building acquired distinctiveness through intensive use of the sign in the marketplace, while waiting for the registration system to catch up to an era that can accommodate them.
PATENTBOX Intellectual Property Law Firm based in Poznań will help you with trademark registration. Wherever you are — contact us and ask about our offer!
This article is for informational purposes only and does not constitute legal advice. For matters involving the protection of non-conventional trademarks, we recommend consulting a trademark attorney.