Your sense of smell is the strongest sense tied to memory, so it’s no surprise that fragrances can hold a lot of power. When a company creates a unique fragrance, they have a right to want to protect it from others using it for their own products. So, can you patent a fragrance? Yes, you can.
Fragrances, which fall under subject matter that is patentable (they are a man-made composition of matter), can be patented so long as they meet the requirements for patentability. This means that the fragrance must be utile, novel, non-obvious, and meet enablement (include a written description of the item being patented, including the manner and process of making it). The fragrance must also be new and non-obvious.
The fact that fragrances are patentable does not negate how complex it is to achieve a patent. To have your patent application accepted commonly requires specialized expertise. Infringement of your fragrance patent may also be difficult to prove. For that reason, while fragrances are patentable, many businesses choose another method for protecting them, such as trademarking them or obtaining trade secret protection.
Trademark registration helps to protect company names and logos. If you receive a trademark, you can protect the name of your fragrance and the logo that identifies it. This means that others would be legally prohibited from using a name or logo similar to yours which could cause confusion for customers.
You can register for a trademark by submitting a trademark application to the trademark office. Your application should include branding materials, relevant images, and a detailed description of the fragrance itself. To be approved for a trademark you may also have to show that your consumers know that your fragrance is a part of your brand, which is often referred to as secondary meaning. Logos or names that have registered trademarks may use the trademark symbol next to them, showing the public that it is protected.
Trade Secret Protections
A common way of protecting a valuable “recipe” is by establishing a trade secret. Trade secrets are valuable pieces of information that a company wishes to keep private so as not to be copied. For instance, Coca-Cola is known for having longstanding trade secrets so as to protect the recipe for its soda. This prevents other companies from being able to make a perfect recreation of it. In order for information to be considered a trade secret it must meet three requirements:
- The manufacturing process and formula must be kept confidential or only shared among select authorized individuals within the company who absolutely must know. For instance, those at Coca-Cola who are combining the ingredients would be required to know how much of each to include, whereas those selling it have no need to be told.
To demonstrate that you have kept your fragrance information confidential, you must implement certain steps, such as:
- Limiting access to the formula and requiring those with access to sign binding non-disclosure agreements (NDAs).
- Executing (and regularly reviewing) strict policies and procedures that ensure only authorized individuals have access to the formula.
- Labeling all related documents/materials with “trade secret” or “confidential.”
- Restricting access to where the fragrance is made or stored.
- Keeping the formula confidential must result in commercial value
- The owner of the fragrance must take reasonable steps to keep the formula confidential.
While trade secrets can be very useful, they don’t provide legal protection in the same manner that trademarks or patents would. Trade secrets have no effect on others who wish to create similar products through reverse engineering yours. For this reason, you may choose to have a patent or trademark and a trade secret.
Scully, Scott, Murphy & Presser Can Help Protect Your Rights
While it may seem simple to obtain protection for your intellectual property, understanding the nuances of each application and process can be quite complex. That is why it is in your best interest to consult with a knowledgeable and experienced IP attorney who can explain your options and help to ensure you are adequately protected.
At Scully, Scott, Murphy & Presser, our qualified intellectual property attorneys can help you to navigate the various IP processes or can help to defend your existing IP and your rights regarding any infringement. To learn more or to schedule a free consultation, contact us today!
Posted in: Patents