About Intellectual Property IP Training IP Outreach IP for… IP and... IP in... Patent & Technology Information Trademark Information Industrial Design Information Geographical Indication Information Plant Variety Information (UPOV) IP Laws, Treaties & Judgements IP Resources IP Reports Patent Protection Trademark Protection Industrial Design Protection Geographical Indication Protection Plant Variety Protection (UPOV) IP Dispute Resolution IP Office Business Solutions Paying for IP Services Negotiation & Decision-Making Development Cooperation Innovation Support Public-Private Partnerships The Organization Working with WIPO Accountability Patents Trademarks Industrial Designs Geographical Indications Copyright Trade Secrets WIPO Academy Workshops & Seminars World IP Day WIPO Magazine Raising Awareness Case Studies & Success Stories IP News WIPO Awards Business Universities Indigenous Peoples Judiciaries Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions Economics Gender Equality Global Health Climate Change Competition Policy Sustainable Development Goals Enforcement Frontier Technologies Mobile Applications Sports Tourism PATENTSCOPE Patent Analytics International Patent Classification ARDI – Research for Innovation ASPI – Specialized Patent Information Global Brand Database Madrid Monitor Article 6ter Express Database Nice Classification Vienna Classification Global Design Database International Designs Bulletin Hague Express Database Locarno Classification Lisbon Express Database Global Brand Database for GIs PLUTO Plant Variety Database GENIE Database WIPO-Administered Treaties WIPO Lex - IP Laws, Treaties & Judgments WIPO Standards IP Statistics WIPO Pearl (Terminology) WIPO Publications Country IP Profiles WIPO Knowledge Center WIPO Technology Trends Global Innovation Index World Intellectual Property Report PCT – The International Patent System ePCT Budapest – The International Microorganism Deposit System Madrid – The International Trademark System eMadrid eMadrid Reference Article 6ter (armorial bearings, flags, state emblems) Hague – The International Design System eHague Lisbon – The International System of Appellations of Origin and Geographical Indications eLisbon UPOV PRISMA Mediation Arbitration Expert Determination Domain Name Disputes Centralized Access to Search and Examination (CASE) Digital Access Service (DAS) WIPO Pay Current Account at WIPO WIPO Assemblies Standing Committees Calendar of Meetings WIPO Official Documents Development Agenda Technical Assistance IP Training Institutions COVID-19 Support National IP Strategies Policy & Legislative Advice Cooperation Hub Technology and Innovation Support Centers (TISC) Technology Transfer Inventor Assistance Program WIPO GREEN WIPO's Pat-INFORMED Accessible Books Consortium WIPO for Creators WIPO ALERT Member States Observers Director General Activities by Unit External Offices Job Vacancies Procurement Results & Budget Financial Reporting Oversight

Smell, Sound and Taste – Getting a Sense of Non-Traditional Marks

February 2009

This INLEX IP Expertise registered sound mark (CTM 004901658) may not look like much on paper but it is worthwhile logging on to the OHIM database to check out the actual sound. (Photo OHIM)
This INLEX IP Expertise registered sound mark (CTM 004901658) may not look like much on paper but it is worthwhile logging on to the OHIM database to check out the actual sound. (Photo OHIM)

If you heard a familiar, comforting sound associated with a particular kind of tea, would you be more likely to choose it? How about the smell of freshly cut grass emanating from tennis balls – would they make you a winner? Or mint-flavored tennis balls for your dog – would fresher breath not be welcome? Marketing specialists would like us to think so, and these are only some of the subtle ways manufacturers get us to recognize their products. But just how far can trademark registration be stretched to protect these innovative ideas?

Smell is said to be one of the most potent types of human memory, and businesses show increasing interest in pairing pleasant scents with their products. To obtain registration of a smell mark applicants must be able to visually represent the product’s scent and must show it is distinctive from the product itself. A bottled sample of the smell for example would decay over time and could therefore not be kept on a trademark register. But how does one represent a smell in a visual way? Writing down the chemical formula for a smell is problematic as it is deemed to represent the substance rather than the smell of that substance. Any written description of a smell must be so precise that that particular smell would not be confused with any other.

An additional obstacle to smell mark registration is that the smell must not result from the nature of the good itself. For example, an application by Chanel to register its well-known No. 5 fragrance as a smell mark in the United Kingdom was unsuccessful on that count – the scent of the perfume being the very essence of the product. However, some smell mark descriptions have met the distinctiveness test and been successfully registered, such as: a Dutch company’s tennis balls with the scent of newly mown grass; and UK registrations for tires with “a floral fragrance/smell reminiscent of roses” and darts with “the strong smell of bitter beer.” The Office for Harmonization in the Internal Market (OHIM), however, does not agree with the granting of the two UK registrations.

Representation of sound marks

In the case of sound marks, alternative methods have emerged for their visual representation: depictions by oscillogram, spectrum, spectrogram and sonogram are now being accepted. Such representations must be handled carefully in order to meet the requirements of individual trademark offices.

In 2003, the Court of Justice of the European Communities ruled in case no. C-283/01 that a trademark may only consist of a graphically represented sound – such as by images, lines or characters – and that its representation must be clear, precise, self-contained, easily accessible, intelligible, durable and objective. The Court specifically excluded written descriptions that say: the sign consists of the notes making up a musical work; or that it is the cry of an animal; an onomatopoeia; or simply a sequence of musical notes. This created some confusion as to possible alternative means of representation.

In recently defined areas of convergence concerning the representation and description of non-traditional marks, the WIPO Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT) agreed that “Offices may require that the representation of sound marks consist of a musical notation on a stave, a description of the sound constituting the mark, or an analog or digital recording of that sound – or of any combination thereof. Where electronic filing is available, an electronic file may be attached to the application. However, for some jurisdictions, only a musical notation on a stave may be considered to adequately represent the mark.”

OHIM decided in 2005 (No. EX-05-3) that applicants could attach a sound file to electronic or online trademark application forms – this still applies. The attachment must be in MP3 format, must not exceed one megabyte and must not allow loops or streaming. Its purpose is to further clarify and support the application. INLEX IP Expertise was the first applicant to successfully obtain a registered Community sound mark using this option. Deutsche Telekom has also registered its jingle as a sound mark under the Madrid Protocol.

Taste marks

Taste marks may be easier to represent graphically – the SCT reports that “the graphic representation requirement was satisfied by using a written description of the taste and an indication that it concerns a taste mark” – but the hurdle of distinctiveness is even harder to overcome as are assertions concerning functionality.

OHIM rejected the pharmaceutical company Eli Lilly’s attempt to register the taste of artificial strawberries noting in its decision in case R 120/2001-2, “Any manufacturer… is entitled to add the flavor of artificial strawberries to those products for the purpose of disguising any unpleasant taste that they might otherwise have or simply for the purpose of making them pleasant to taste… Moreover, the taste is unlikely to be perceived by consumers as a trademark; they are far more likely to assume that it is intended to disguise the unpleasant taste of the product…” A similar attempt by N.V. Organon to register an orange flavor for pharmaceuticals was rejected by the USPTO1. As the Trademark Trials and Appeals Court pointed out, it is difficult to define how taste can act as a trademark when consumers only taste goods after purchase.

As work on non-traditional marks progresses and the business world continues to create and market new types of products, we may see a fascinating transformation of the world of trademarks.

Moving images, holograms and gestures

Multimedia production has opened the way for even more non-traditional trademarks: holograms, gestures and motion or moving image marks. Their registration usually requires the use of a sequence of pictures or drawings to depict how the trademark functions.

Motion marks are probably the most common of the multimedia marks. Movie fans are familiar with the 20th Century Fox Film Corporation logo with floodlights trailing back and forth across the sky, but few know it is a registered trademark (USPTO 1.928.424). The Australian tennis player Lleyton Hewitt applied for trademark registration of his “C’mon” gesture, but it seems it was in no way unique. Records of its use by another athlete date back to the 1980s.


The EU registered (CTM 1400092) the Lamborghini moving image trademark for car doors opening and turning upward.


Kraft Foods UK Ltd. registered this moving image trademark (UK 228003) for chocolate and chocolate confectionery.
Credit:UK Intellectual Property Office


The VF - Video Future hologram trademark
(CTM 2117034) registered by GDS Video.
Photo: OHIM


1. USPTO, June 14, 2006, In re N.V. Organon

The WIPO Magazine is intended to help broaden public understanding of intellectual property and of WIPO’s work, and is not an official document of WIPO. The designations employed and the presentation of material throughout this publication do not imply the expression of any opinion whatsoever on the part of WIPO concerning the legal status of any country, territory or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. This publication is not intended to reflect the views of the Member States or the WIPO Secretariat. The mention of specific companies or products of manufacturers does not imply that they are endorsed or recommended by WIPO in preference to others of a similar nature that are not mentioned.