Do you really want to stand out with your business? Get a scent trade mark – the black diamond of trade marks!

Coffee scent can be a trade mark, just not for coffee!

Scent trade marks are real, registrable, and ultra-rare. In Australia, they’re rarer than hen’s teeth: out of hundreds of thousands of active registrations, only two live scent marks exist on the register. If you want distinctiveness that competitors can’t casually mimic, a well-chosen and properly evidenced scent can deliver it—provided you clear the steep legal hurdles.

The only two registered scent marks in Australia (with numbers and coverage)

1. AU TM 1241420 – “a Eucalyptus Radiata scent” (for golf tees, Class 28).Registered for scented golf tees. This mark shows that a precise botanical description tied to a specific, unexpected good can pass examination.

2. AU TM 1858042 – “the smell of cinnamon (being principally Cinnamaldehyde)” (for non-wood-based furniture, principally foam, steel, plastics, and melamine-coated particle board).A furniture maker locked in the olfactory signature of cinnamon across specified materials, again with a tightly defined chemical anchor.

Multiple Australian firms and IP commentators confirm there are only two registered scent marks on the Australian register; attempts beyond these are vanishingly rare.

Why scent marks are exceptionally rare

Representation problem (how do you “draw” a smell?).Australia still expects a graphical representation and a precise description. IP Australia’s Manual says scents are “one of the most difficult” non-traditional signs to represent, and the application must include a representation and an unambiguous description that examiners and the public can understand. Vague words won’t cut it.

The Sieckmann legacy (clarity/precision standards).Europe’s famous Sieckmann case set the benchmark for non-traditional marks: the sign must be represented in a manner that is clear, precise, self-contained, easily accessible, intelligible, durable and objective. Chemical formulas, loose prose, or a deposited odor sample didn’t satisfy those standards for an olfactory sign. Australian practice is heavily influenced by these criteria in spirit, if not letter.

Distinctiveness and non-functionality (harder than it sounds).A scent can’t be the natural smell or a functional aroma of the goods (e.g., perfume or food aromas generally fail). You must show the scent identifies source rather than describing or improving the product. That’s a high evidentiary bar.

Use evidence that convinces.Where inherent distinctiveness is doubtful (usually the case), you need acquired distinctiveness: advertising that calls out the scent, consistent use, distributor and customer declarations, media coverage—evidence that consumers link that smell to you. US cases show what succeeds (see below), and Australian examiners expect similar rigor.

Enforcement and proof issues.Even once registered, proving use and infringement can get technical: you may need lab analysis or expert evidence to show the competitor’s products carry a substantially identical scent, not just a generic “nice smell”. That increases cost and litigation complexity (part of why very few try).

International snapshot (what’s possible—and what isn’t)

United States (USPTO): feasible with proof.The US has the deepest body of scent-mark practice. The seminal decision In re Clarke (TTAB 1990) accepted “a high-impact, fresh, floral fragrance reminiscent of plumeria blossoms” for sewing thread and embroidery yarn—because buyers had learned to see (smell) that fragrance as a source indicator. Since then, bubble-gum scent for footwear (Reg. 4754435, Grendene) and chocolate scent for jewelry retail services (Reg. 4966487, Le Vian) are among the small set of live US scent registrations, each allowed on strong distinctiveness/acquired distinctiveness evidence and non-functionality.

European Union (EUIPO): practically none live today.Historically, OHIM (now EUIPO) let through the “smell of fresh cut grass” for tennis balls (CTM 000428870) in 1999, but that registration later expired and was not renewed. The EU removed the formal “graphical representation” requirement in 2017, yet olfactory marks remain effectively unregistrable in practice because the representation must still meet the Sieckmann clarity/precision standards and examiners have not been satisfied with any proposed smell representations since.

Bottom line internationally: the US is your best shot (with heavy evidence). The EU is theoretically open but in practice a dead end. Australia is possible but rare—two successes in nearly three decades.

What it takes to make a scent mark work (practical checklist)

• Choose an unexpected pairing. Scents tied to goods that don’t normally smell like that (e.g., eucalyptus for golf tees, cinnamon for furniture) have a fighting chance. Perfume/cosmetics and food aromas are functionally problematic and typically barred.

• Define the scent precisely. Use unambiguous terms (botanical/chemical identifiers like “Eucalyptus Radiata” or “principally Cinnamaldehyde”) and a tight goods list. Vague “nice floral smell” won’t pass.

• Build distinctiveness evidence early. Market the scent as your signature: call it out on packaging, ads, point-of-sale, PR, and get third-party coverage and declarations. The winning US filings leaned on voluminous evidence showing consumers associate the scent with one source.

• Run clearance and file narrowly. Search the register and plan a narrow initial filing around the products where you can prove distinctiveness and non-functionality. Expand later if the brand story sticks. (Use IP Australia’s search tool to scope conflicts.)

• Plan for policing. If copied, you’ll need technical proof the competitor’s scent is substantially the same—budget for testing and expert opinions.

What does it actually cost to secure a scent mark?

Pursuing a scent trade mark is not cheap. For a single class in Australia, you should budget in the range of AUD 250–400 for official filing fees alone. On top of that, you need to factor in lawyer’s fees, which usually sit between AUD 3,000–7,000 (depending on the complexity of drafting, dealing with objections, and handling evidence). If you need to compile and present significant use and distinctiveness evidence—such as expert declarations, market surveys, or lab reports—costs can easily rise by another AUD 5,000–15,000. All in, a realistic end-to-end estimate for getting a scent mark from filing to registration in Australia is AUD 10,000–20,000. That’s a serious investment, but it buys you one of the rarest and most striking forms of brand protection available.

Why you should consider it anyway

Think about it: every competitor can file a word mark, and logos flood the register every day. But hardly anyone in Australia or globally has a scent mark—they are the black diamonds of intellectual property. If your product or retail space carries a signature aroma that’s non-functional and instantly triggers recognition, locking it down with a scent trade mark makes your brand unforgettable and legally defensible. It’s bold, it’s unusual, and it tells your customers you play in a league of your own. The path isn’t easy, but that’s exactly why the reward is so powerful. If you want to stand out in a crowded market and own an edge your competitors can’t copy, this is your boldest move in the legal world and in business.