Registering Scents or Flavors in the U.S.

When people think of trademarks, what comes to mind immediately are words or logos.  But did you know that things like scents, fragrances and flavors can be registered as well?

The scent of a product may be registrable if it is used in a nonfunctional manner. Scents that serve a utilitarian purpose, such as the scent of perfume or an air freshener, are functional and not registrable. If a scent is not functional, it may be eligible for registration on the Principal Register under §2(f), or on the Supplemental Register if appropriate.

However, these types of marks are still pretty rare and anyone seeking to register one must be aware that the amount of evidence required to establish that a scent or fragrance functions as a mark is usually substantial.

Just as with a scent or fragrance, a flavor can never be inherently distinctive because it is generally seen as a characteristic of the goods. Again, this area is mostly unchartered and even The Board itself has observed that it is unclear how a flavor could function as a source indicator because flavor or taste generally performs a utilitarian function and consumers generally have no access to a product’s flavor or taste prior to purchase. So again, be expected to show a substantial amount of acquired distinctiveness.

If you believe you have a scent or a flavor that functions as a trademark, please contact us and we'd be happy to advise you further!