Skip to main content

Not only do scents add commercial value to a product, they can also be a distinctive feature of a product. Manish Biala and Ashutosh Upadhyaya explore the use of scent marks in Europe, the United States and – perhaps one day – India.

We understand that a trademark is a commercial identity which provides a business an absolute protection against infringement and misuse. The common understanding in case of trademark infringement or passing off is how the impugned mark creates confusion for a consumer with “average intelligence” and “imperfect recollection”. This rule is limited to the visual memory and identification of a consumer. However, it is neither impossible nor difficult for such a consumer to identify the source of a product merely by the smell or scent of the product.

Not only do scents add commercial value to a product, but scents can also perform as a distinctive feature of a product and can further help the consumer identify the product without having to know its trade name. However, this is only possible once the scent of the product is used uninterruptedly as a mark and has acquired distinctiveness amongst its users.

This article was published in Asia IP.

Most Recent

News & Insights

VIEW ALL
News & Updates, Thought Leadership
•
Oct 17, 2026

An active pharmaceutical ingredient (API) is the substance responsible for a medicine’s therapeutic effect. Developing one can involve years of chemical

API Process Patents in India: Key Patent Infringement Disputes and Court Decisions
Thought Leadership
•
Oct 15, 2026

First published on Enterprise IT World. Authored by Subroto Kumar Panda Imagine you gave a supersmart robot a credit card and told it to “buy the best

Taming the AI Beast: How Big Companies Build Safe AI Agents
News & Updates, Thought Leadership
•
Oct 14, 2026

Think about the last YouTube video you watched. It might have been a travel vlog, a product review, a legal explainer, a cooking tutorial or a short documentary.

Who Owns a YouTube Video? Copyright Protection for Digital Creators in India
News & Updates, Thought Leadership
•
Oct 09, 2026

For a creator, the product and the person are often indistinguishable. A finance educator’s credibility, a teacher’s cadence, a comedian’s

When Your Persona Becomes Your Business: Personality Rights of Influencers in India