Time for IP Protection of Fragrances in the UK?

In recent years, artificial intelligence (AI) has made remarkable strides in the sensory world, particularly in scent creation. By harnessing AI, businesses can now create and replicate unique fragrances with unprecedented precision, enhancing brand experiences and allowing new forms of creative expression. However, this innovation presents a fresh challenge for intellectual property (IP) law, particularly around trade mark, copyright, and patent protection for scents in the UK.

As AI pushes the boundaries of what can be achieved with fragrances, it’s time to ask: could technology make it possible for perfumes to be registered as trade marks or even patented in the UK or EU?

The Sieckmann Criteria and Trade Marking Scents: Is Change Possible?

Currently, the legal framework in the UK (and the EU) for trade marks requires a mark to meet the Sieckmann criteria, established in 2002, which demands that non-traditional marks – such as sounds, colours, and scents – must be represented in a manner that is clear, precise, self-contained, durable, and objective.

The challenge for fragrances lies in the “clear and precise” requirement. Unlike a visual logo or a word mark, which are easily represented in a fixed, consistent form, scents are complex and difficult to define. However, with new technology, it may become possible for AI-generated scents to overcome these challenges. AI’s ability to create distinct, repeatable fragrance formulas with highly specific chemical profiles could, in theory, allow for the clear representation required for a trade mark.

For a scent to qualify, it must also be “distinctive” and “original” in the same way a melody or a piece of art is, offering a unique identifier for the business. The AI-generated formula could act as this unique identifier, recorded in detail to meet legal standards. However, even with AI’s capabilities, significant legal hurdles remain in UK trade mark law for scents.

The Copyright Conundrum: Functional vs Artistic Scents

In the UK, copyright law covers works that can be reproduced visually or audibly, but it does not extend to scents. The reason is largely tied to the requirement that artistic elements must be distinct from functional elements. Since perfumes and other fragrances are inherently functional—designed to create a sensory experience rather than to serve as artistic expressions alone—proving this separation is a significant challenge.

However, AI may offer a solution here too. If AI can generate scents purely as sensory experiences, independent of their functional uses, it might pave the way for scents to gain a unique kind of copyright protection. Such protection would focus on the distinctiveness and “creative expression” of the scent, acknowledging it as an original work. Although UK copyright law currently doesn’t extend to fragrances, technology could be the catalyst for a broader legal evolution in this area.

Patents and Scent Protection: An Untapped Avenue

Patents, though less commonly used for scents, offer a potential avenue for protection. In the UK, patents protect new inventions that meet specific requirements, including novelty, non-obviousness, and industrial applicability. For fragrances, this could mean patenting a specific, novel composition of scent molecules, provided the formulation isn’t obvious to other experts in the field.

With AI’s ability to create unique combinations of scent molecules that may not have been used before, there is potential for patenting specific formulations. A patent would provide powerful protection by giving the holder exclusive rights to use or license the formulation for a fixed period. However, securing patents for scents remains challenging due to the strict novelty and non-obviousness criteria. Moreover, patents are typically seen as too complex and costly for many companies in the fragrance industry, who often rely on trade secrets instead.

The Current State of Scent Protection in the UK: A Gap in IP Law

In the absence of clear IP protection for scents, businesses that invest in creating bespoke fragrances are left vulnerable. This lack of legal protection is especially problematic for sectors like luxury goods, hospitality, and retail, where unique scents are crucial for enhancing customer experience and establishing brand identity. A signature scent in a boutique hotel or retail space, for example, can create an emotional connection with customers, one that builds brand loyalty and enhances the overall customer experience. Without trade mark or copyright protection, these businesses risk having their carefully curated scents replicated by competitors with no recourse for infringement.

The lack of IP protection for scents means that a critical element of brand identity is left unprotected. For businesses, this means any competitor could copy a bespoke fragrance – an asset that represents a significant investment of time, money, and creativity – without facing legal consequences.

Could Recognising Scent IP Encourage Innovation?

Granting IP protection for scents could foster more innovation within fragrance creation, encouraging businesses to invest in unique olfactory identities just as they would in logos, taglines, or product designs. Recognising scents as IP assets would mean they could be legally protected from imitation, offering businesses a level of control and exclusivity that is currently out of reach. Such recognition could allow for trade marks, patents, or even copyright protections on scents, which would help maintain their integrity and value.

Ultimately, offering IP protection for scents would enable businesses to protect their sensory branding just as effectively as their visual or verbal branding. With the advent of AI technology, the question isn’t just whether scent protection is possible—it’s whether the time has come to recognise and protect this evolving area of creativity.

Conclusion: Time for IP Protection for Scents?

As AI technology continues to reshape the boundaries of what can be created, perhaps it’s also time for IP law to adapt. In an increasingly competitive landscape, where unique customer experiences are essential for differentiation, scent could be the next frontier of brand identity. Recognising scent IP could provide businesses with the protection they need to innovate confidently in this area.

So, what do you think? Is it time for IP protection for scents? AI’s ability to craft distinctive and repeatable fragrances may soon demand a legal framework that recognises these creations, offering them the same respect and protection as traditional forms of intellectual property.

At National Business Register we have been helping businesses protect their brands for 40 years.  If you’d like to know more about the ways IP protection can help safeguard your business you can contact us by emailing info@nbrg.co.uk or calling  0800 069 9090.