INTRODUCTION: THE EXPANSION OF INTELLECTUAL PROPERTY BEYOND THE VISIBLE
In the twenty-first century, branding has evolved beyond visual identity to encompass sensory experiences. Traditional branding that relied on logos, names, and slogans has been replaced by multi-sensory branding. This modern protocol is based on the idea of experiential capitalism. Business tycoons use scents and flavours to drive consumer retention and loyalty, as they create stronger memory associations than visual branding. A few renowned examples include: Westin Hotels & Resorts using ‘White Tea’ as their signature scent diffused throughout properties globally, and Starbucks intentionally preserving the fresh aroma of roasted coffee beans inside stores.[1]
This commodification of human sensory perception raises a profound legal question: can smell/taste become intellectual property? While sensory branding possesses immense commercial value, its subjective and functional nature creates jurisprudential challenges for intellectual property frameworks.
RISE OF NON-TRADITIONAL TRADEMARKS
Traditionally, trademark law has focused on visual source identification, such as names, logos, labels, and symbols that distinguish one trader from another. However, with the evolution of the global market and business strategies, it has gradually expanded to recognise sound, colour, and shape marks.[2] Hence, smell and taste have emerged as powerful tools of commercial distinctiveness. This transformation reflects how trademark law adapts itself to the changing forms of commercialisation trends and consumer behaviour.
CAN SMELL FUNCTION AS A TRADEMARK?
An olfactory trademark is a scent capable of distinguishing the product of one business from others. With the evolving branding scenario, businesses increasingly focus on using smell as a source identifier of commercial origin and brand identity. These requirements become difficult to fulfil in the context of olfactory marks because such experiences are inherently subjective and difficult to represent with precision. While traditional symbols can easily be objectively identified, individual sensory perception of non-conventional trademarks creates doctrinal and evidentiary complications within trademark jurisprudence.[3]
The landmark case of Sieckmann v Deutsches Patent- und Markenamt illustrates the fundamental legal difficulties surrounding olfactory trademarks. The applicant sought registration of a scent described as “balsamically fruity with a slight hint of cinnamon” and supported the application with a chemical formula, a written description, and a physical sample of the scent. However, the Court of Justice of the European Union rejected the application, holding that a trademark representation must be clear, precise, self-contained, intelligible, durable, and objective.[4] While the decision established an important benchmark for trademark registration, it also exposed the jurisprudential dilemma of intellectual property laws, that prioritises legal certainty and objective identification, whereas sensory perception remains inherently subjective and unstable.[5] By insisting on objective representation, the judgment effectively restricted the recognition of olfactory marks despite their growing commercial significance in sensory branding. More importantly, Sieckmann raises a broader jurisprudential question: should intellectual property law adapt to emerging forms of commercial expression, or should legal certainty continue to outweigh innovation in sensory branding?
WHY TASTE PROTECTION IS EVEN MORE DIFFICULT
Taste presents an even greater challenge for intellectual property law as flavour largely varies according to biological, cultural, and psychological factors. Unlike visual or auditory expressions, taste cannot be consistently identified or reproduced with precision, as individual sensory experiences depend on factors like memory, smell interaction, ingredients, and consumption conditions. The issue was highlighted in Levola Hengelo BV v Smilde Foods BV, where the Court of Justice of the European Union legally denied the copyright protection to the taste of a cheese spread.[6] The court held that copyright law requires an identifiable expression capable of objective and precise determination, which taste inherently lacks.[7]
WHY SENSORY INNOVATION DESERVES PROTECTION
Despite the presented legal challenges, the idea of protection and support for sensory trademarks continues to gain prominence in the modern industry. Businesses invest heavily in developing unique sensory identities for branding purposes. Behavioral economics and consumer psychology research demonstrate that sensory memory influences purchasing behaviour through emotional attachment and memory retention, shaping consumer perception and strengthening brand loyalty.[8] Luxury hotels, cafés, perfume brands, and retail stores increasingly invest in ambient fragrances and flavour engineering to create distinctive consumer experiences. Hence, denying legal protection to sensory branding may discourage innovation and commercial investment in emerging forms of experiential marketing. Furthermore, technological developments such as AI-based sensory mapping and digital scent coding may eventually reduce the problem of subjective representation that currently limits sensory intellectual property protection.[9]
THE RISKS OF OVEREXTENDING INTELLECTUAL PROPERTY PROTECTION
However, extending intellectual property protection to smell and taste may create serious legal and economic concerns. Granting exclusive protection and rights to common scents or flavours could lead to the monopolisation of sensory experiences, which should remain accessible for the public interest.[10] For instance, allowing businesses to claim ownership over widely recognisable smells and tastes such as vanilla could significantly harm free will for creativity. Additionally, intellectual property trademark law generally refuses protection for functional characteristics essential to a product’s value or purpose. Since consumers often purchase food products primarily because of their smell or flavour, granting exclusivity over the sensory experience may conflict with the functionality doctrine itself.[11] The extensive protection, if granted, can risk the inherent idea behind the inception of intellectual property law. The mechanism that encourages innovation may risk creativity and transform into one that suppresses competition, limiting consumer choice.
INDIA’S POSITION AND THE FUTURE OF SENSORY INTELLECTUAL PROPERTY
In India, the legal recognition of sensory trademarks remains vague. Section 2(1) of the Trade Marks Act, 1999 requires a trademark to be capable of graphical representation and of distinguishing the goods or services of one producer from those of another.[12] Although Indian law has gradually recognised certain non-conventional marks, such as sound marks, smell, and taste marks, they continue to face doctrinal and evidential challenges due to difficulties in objective representation and verification. The reasoning adopted in Sieckmann v Deutsches Patent- und Markenamt remains particularly relevant in the Indian context, as the requirement of certainty and distinctiveness makes the registration of sensory marks challenging under the current framework.[13]
Nevertheless, India’s trademark regime is not entirely inflexible. The growing significance of sensory and experiential branding in sectors such as hospitality, luxury retail, cosmetics, and food products may prompt a broader interpretation of non-conventional trademarks, eventually intensifying the demand for exclusive protection and ownership in the future. Ultimately, the debate surrounding smell and taste trademarks reflects a broader jurisprudential question regarding whether human sensory experiences themselves can become objects of proprietary ownership.[14]
CONCLUSION: BETWEEN LEGAL CERTAINTY AND SENSORY INNOVATION
While sensory branding has become an increasingly valuable tool for market differentiation, the subjective and functional nature of scents and flavours continues to create significant obstacles for legal protection. Decisions such as Sieckmann and Levola Hengelo reflect the judiciary’s preference for certainty, objectivity, and clear representation, even at the cost of excluding commercially valuable sensory identifiers from existing intellectual property regimes.
Nevertheless, the rapid development of sensory technologies, artificial intelligence, and experiential marketing may eventually challenge the assumptions underlying these decisions. As businesses increasingly invest in distinctive sensory experiences, legal systems may be compelled to reconsider whether traditional requirements remain suitable for emerging forms of branding. Ultimately, the question is not merely whether scents and flavours can be owned, but whether intellectual property law is prepared to evolve alongside the changing nature of human creativity and commerce.[15]
Author(s) Name: Janhvi Pandey (National Law Institute University, Bhopal)
References:
[1] Aradhna Krishna, ‘An integrative review of sensory marketing: Engaging the senses to affect perception, judgment and behavior’ (2012) 22(3) Journal of Consumer Psychology 332 <https://www.sciencedirect.com/science/article/abs/pii/S1057740811000830> accessed 26 May 2026
[2] Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications, NEW TYPES OF MARKS (World Intellectual Property Organization 2006)
[3] GUIDELINES FOR EXAMINATION OF EUROPEAN UNION TRADE MARKS (European Union Intellectual Property Office 2025) pt B, s 4
[4] Sieckmann v Deutsches Patent- und Markenamt [2002] Case C-273/00 (ECLI:EU:C:2002:748) [48]–[55]
[5] Dev Gangjee, ‘NON CONVENTIONAL TRADE MARKS IN INDIA’ (2010) 22(1) National Law School of India Review <https://docs.manupatra.in/newsline/articles/Upload/BB1047DA-5CCF-41BC-9C82-487F5DC570D3.pdf> accessed 26 May 2026
[6] Levola Hengelo BV v Smilde Foods BV [2018] Case C-310/17 (ECLI:EU:C:2018:899)
[7] Ibid [40]–[45]; Tanya Aplin and Jennifer Davis, Intellectual Property Law: Text, Cases, and Materials (3rd edn, OUP 2021) 89–91
[8] Krishna (n 1) 333–338
[9] Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (n 2)
[10] William M Landes and Richard A Posner, The Economic Structure of Intellectual Property Law (Harvard University Press 2003) 167–170
[11] Graeme B Dinwoodie and Mark D Janis, Trademarks and Unfair Competition: Law and Policy (5th edn, Wolters Kluwer 2020) 512–515
[12] Trade Marks Act 1999, s 2(1)(zb)
[13] Sieckmann v Deutsches Patent- und Markenamt [2002] Case C-273/00 (EU:C:2002:748) [55]
[14] Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (n 2); Aplin (n 7) 91–93
[15] Ibid