Olfactory Trade Marks

Olfactory Trade Marks

Trade marks generally conjure up images of symbols or words when first coming to mind. These traditional forms, however, are merely an interlude as to what could constitute a ‘mark’ under the Trade Marks Act. Per the Act, a mark is anything that can be represented graphically. While a few examples are provided, the list is open-ended, creating seemingly endless opportunities to trademark senses and features. 

Understanding that it may be difficult for companies or businesses to determine exactly what can be claimed as a trade mark, the Companies and Intellectual Property Commission (‘CIPC’) released a list of non-traditional trade marks in 2009 that details a few unusual trade marks and what evidence would be necessary to register them in the South African Trade Marks Register. One such example is olfactory trade marks, or scent trade marks.

WHAT ARE OLFACTORY TRADE MARKS?

Olfactory trade marks are specific scents or smells that have been recognised as  trade marks – that is, they distinguish the goods originating from one person or company from all other competitors in the same market. Like other trade marks, olfactory trade marks need to be sufficiently distinctive to be registrable, and must also not violate any pre-existing rights of other olfactory trade marks on the market (this latter requirement is less of a concern for this category of trade marks).

HOW COMMON ARE OLFACTORY TRADE MARKS?

As of July 2025, no olfactory trade marks have been successfully registered in South Africa. This scarcity is not limited to the Republic, however – scent trade marks and few and far between throughout the world, but are not entirely unattainable. In early 2025, for example, Crayola successfully registered an olfactory trade mark for the smell of its wax crayons in the United States. Play-Doh has also previously managed to trade mark the scent of their putty.

WHAT EVIDENCE IS NEEDED TO REGISTER AN OLFACTORY TRADE MARK?

The CIPC recommends that, to assure the successful registration of an olfactory trade mark, a written description of the scent as well as a sample thereof must be submitted to the office of the Trade Marks Registrar. Importantly, mention is also made to the “Sieckmann criteria” – that is, the mark must be precise, clear, self-contained, intelligible, easily accessible, durable and objective. The aforementioned criteria originates from the Sieckmann case decided by the European Court of Justice, wherein the Court found that a sample of a smell, its chemical formula and a brief written description thereof were insufficient in rendering a scent identifiable as a trade mark. While this does bring into question what would be considered adequate to represent a olfactory trade mark, it is submitted that as much detail as possible should be included in the application, such as a thorough written description of the scent.

While olfactory trade marks are relatively unchartered territory in South Africa, the successful registration of one could create a unique competitive opportunity for its owner in the desired market. For more information on registering trade marks, please contact Xuba & Associates Attorneys.