Scents Without Shields: Why Iconic Fragrances Like Santal 33 and Baraonda Remain Beyond Direct IP Protection

The luxury fragrance market has long been driven by emotion, memory, and storytelling—but for many niche brands, what truly lingers is the scent itself. Take, for instance, Le Labo’s Santal 33, a woody icon that redefined urban fragrance profiles, or Nasomatto’s Baraonda, which offers a bold olfactory journey that is immediately recognizable to perfume aficionados. These fragrances have moved beyond boutique counters to become cultural markers—cited in fashion editorials, whispered about on niche blogs, and worn like invisible identity statements. Yet, despite their unmistakable scent profiles and market prestige, these perfumes are legally defenseless where it matters most: the scent itself.

Here lies the paradox that defines this article: some of the most iconic and commercially successful fragrances of the last decade—Le Labo’s Santal 33, Nasomatto’s Baraonda, Memo’s Marfa, Frederic Malle’s Dans Tes Bras—cannot protect their defining characteristic, the very smell that consumers fall in love with. This challenge goes far beyond brand prestige or aesthetic packaging; it touches the core of how intellectual property (IP) systems classify, validate, and protect sensory experiences. While a logo or slogan can be registered with relative ease, the smell of a perfume, no matter how distinctive or valuable, continues to fall outside the scope of formal protection in most jurisdictions.

Why is that? Because scent, as it turns out, is incredibly difficult to describe with the specificity and consistency required by IP offices. From a legal standpoint, a trademark must be clear, precise, self-contained, and easily accessible to third parties. Yet scent is inherently subjective. What smells like smoky sandalwood and cardamom to one person may register as clean leather and cedar to another. Unlike words or visual symbols, there is no universal system for describing smell that meets the legal threshold for a trademark—no “olfactory dictionary,” if you will.

This is not merely an academic problem. For niche perfumers whose products rely on uniqueness and artistic composition rather than mass appeal, the inability to protect the scent itself leaves a key asset unguarded. Competitors can imitate the olfactory profile without direct legal consequences, as long as they steer clear of trademarked names, packaging, and logos. As a result, brands must find other ways to protect their value, often turning to multisensory branding strategies: distinctive bottle shapes, label typography, tactile finishes, even curated in-store soundtracks—all of which can be legally protected under trademark or design law.

Why Scents Are (Almost) Impossible to Trademark

In the luxurious yet elusive world of niche perfumery, fragrances like Santal 33 and Baraonda command instant recognition and emotional resonance. Yet, despite their unmistakable signatures, these olfactory icons remain legally unprotected in most jurisdictions. Unlike logos or jingles, which are readily safeguarded by trademark law, the very essence of these perfumes—their scent—is not considered eligible for direct trademark registration under current legal frameworks in both the European Union and the United States.

The primary legal roadblock lies in how trademark systems define what is registrable. To function as a trademark, a sign must be capable of being represented in a manner that enables both the authorities and the public to determine the clear and precise subject of protection. For visual or verbal marks, this is straightforward. But with smells, problems arise immediately. Scents lack an accepted, precise representation format. A chemical formula doesn’t communicate the olfactory experience to an average person. A description in words is too vague. A physical sample is unstable and subjective over time. These issues have led to nearly uniform rejection by offices like the EUIPO and USPTO.

The turning point in this area of law came with the influential Sieckmann v. Deutsches Patent- und Markenamt case decided by the Court of Justice of the European Union (CJEU) in 2002. In this case, the applicant tried to register a scent described as "balsamically fruity with a slight hint of cinnamon" and represented by a chemical formula and a sample. The CJEU rejected the application, establishing what is now known as the “Sieckmann criteria.” These require that a trademark be clear, precise, self-contained, easily accessible, intelligible, durable, and objective. The Court found that the scent’s representation failed nearly all of these criteria. This case effectively closed the door on most attempts to register smells in the EU, setting a high bar that few applicants have managed to clear since.

Post-Sieckmann, both the EUIPO and USPTO have remained consistent in their resistance to olfactory marks. Attempts to register scents have continued—ranging from the smell of freshly cut grass to the Crayola crayon aroma—but have nearly always failed due to lack of distinctiveness or adequate representation. Even in the United States, where some scent marks have technically been allowed (such as the scent of bubblegum for sandals), these cases are exceedingly rare, limited to highly unusual factual circumstances, and typically restricted to non-functional scents in niche commercial contexts. No fragrance from a perfume bottle has ever made it past this gate.

Another central issue is distinctiveness. While a scent may seem highly original to the consumer, legal examiners view most perfumes as inherently functional—intended to add value to the product rather than serve as a source identifier. This functional nature precludes them from qualifying as trademarks. Under U.S. law, a functional feature (even if distinctive) cannot be protected if it gives a product its essential character or aesthetic appeal. Perfumes, by design, are precisely about olfactory appeal, making it nearly impossible to argue that the scent alone functions primarily as a brand identifier rather than the product’s content.

Ultimately, the legal system has yet to reconcile the consumer’s real-world recognition of fragrance signatures with the formalities required by IP registration systems. The legal machinery demands clarity, reproducibility, and objectivity—qualities that are difficult to extract from something as ephemeral and subjective as a scent. Until courts or legislators revisit these assumptions, perfumes will continue to float in a legal limbo: deeply evocative, commercially potent, but legally unprotected in their most essential form.

Notable Attempts and Rejections

The quest to protect scents as intellectual property has not gone unnoticed by companies in various industries—from art supply giants to gourmet food producers. However, even the most recognizable and beloved fragrances have struggled to cross the legal finish line. For me, one of the most illustrative examples is Re: Vennootschap onder Firma Senta Aromatic Marketing, a company which attempted to register the tennis ball smell, an odor many of us associate with the first opening of tennis ball can, a neat reminder of tournament energy, adrenaline and court rituals. Despite its undeniable distinctiveness and deep association, the smell itself has never secured standalone trademark protection in major jurisdictions. The reason? The same barriers that face perfumers: how to define the smell in a way that meets the legal requirements of clarity, consistency, and non-functionality.

The tennis ball scent—a demi-industrial mixture of vulcanized rubber and wool nylon chemicals—might be easily identified by a large portion of the population, but its components are functional in nature. The smell comes directly from the materials used to produce the balls, and therefore, under both U.S. and EU trademark law, it fails the functionality test. Trademark law does not allow protection for features that are essential to the product's use or appeal. Protecting the scent of tennis balls would amount to protecting the natural byproduct of the tennis ball's materials, thereby potentially giving the trademark owner an unfair competitive advantage.

Similar hurdles have blocked efforts across industries. In the cosmetics and luxury goods sectors, attempts to register fragrances used in products such as shampoos, air fresheners, and candles have consistently been refused by both the EUIPO and the USPTO. In each case, applicants failed to overcome the core issues: they could not offer a clear and objective representation of the scent, and the odor was deemed too functional or aesthetic to qualify as a source indicator. For example, one rejection involved a citrus-scented lubricant, which was seen as a functional feature enhancing user experience rather than serving to identify the product's commercial origin.

Beyond case law, soft law instruments have taken a cautious and consistent stance. The EUIPO’s Convergence Programme—a coordinated effort among European IP offices to harmonize practices—has underscored that, for olfactory marks, the issue is not just policy but also technical feasibility. As long as smell cannot be fixed in a universally accepted and reproducible format, trademark protection remains out of reach. Similarly, USPTO examination guidelines now make it exceedingly clear that scent marks must be both non-functional and distinctive, and any claim must be supported by substantial evidence of consumer recognition—an extremely high threshold.

The practical consequence is that even the most successful, culturally embedded fragrances remain legally vulnerable. Brands like Le Labo, Nasomatto, and Frederic Malle have succeeded not through legal exclusivity over the smell itself, but through brand storytelling, packaging design, and experiential marketing. There is no legal tool to stop a competitor from mimicking the scent of Santal 33. What protects Le Labo is its distinct bottle, minimalist labeling, customer loyalty, and aura of exclusivity. The scent, ironically, is the heart of the product yet the one part of it least protected under current IP frameworks.

In short, the legal system still asks an impossible question: “Describe this smell in a way that is exact, reproducible, and independent of human perception.” Until science, legislation, or jurisprudence bridges that gap, olfactory signatures will continue to exist as commercial assets with no direct IP protection—powerful in practice, yet unregistered on paper.

How Niche Perfume Brands Build Legal Protection Without Protecting the Scent

In the absence of direct legal protection for fragrance formulas, niche perfume houses have learned to build a fortress around their brands using other, more enforceable forms of intellectual property. While the scent itself may escape registration, almost everything surrounding it can—and should—be protected. The strategy is not to guard the smell, but to make the brand unmistakable.

The most common route is trademark registration. Brand names, collection titles, and individual fragrance names are all typically protected under trademark law. For example, Santal 33, Portrait of a Lady, and Baraonda are names that hold commercial weight—and that weight is reinforced by ownership of the associated trademark. In many cases, companies also register logos, taglines, and unique bottle names, transforming what would be a vulnerable product into a legally shielded identity. Le Labo, for instance, has built an instantly recognizable profile by trademarking its clinical, apothecary-style labels and minimalist branding. It’s not just a name—it’s a whole visual and conceptual world.

Beyond trademarks, trade dress plays a critical role. Trade dress refers to the overall look and feel of a product that identifies its source. Although not always registered formally, strong and consistent use of design can become legally protectable over time. Think of Nasomatto’s heavy square bottles with dramatically oversized caps, or Frederic Malle’s distinctive use of Helvetica typography on black and red labels. These elements work together to establish an aesthetic that’s hard to copy without drawing legal scrutiny. In this way, visual branding becomes a stand-in for olfactory uniqueness, creating consumer association through sight instead of smell.

Brands also turn to copyright law to protect the intangible parts of the storytelling. Campaign photography, visual design, brand narratives, and written content (like the poetic blurbs found on perfume boxes or websites) are all eligible for copyright protection. Memo Paris, for instance, leans heavily into storytelling—each scent tied to a city, memory, or feeling. That emotional arc, delivered through visuals and words, can be protected as creative expression even if the scent that inspired it cannot.

And finally, there’s the most old-fashioned form of IP protection: secrecy. The perfume industry has long relied on trade secrets to guard its formulas, and niche brands are no different. The exact blend of ingredients that makes Santal 33 so addictive or Baraondaso boozy remains confidential, known only to the perfumer and a few trusted employees. These formulas are rarely patented, as doing so would require disclosure—and in any case, a patent’s lifespan is limited. Instead, fragrance houses rely on non-disclosure agreements, secure supply chains, and internal safeguards to ensure their scent remains difficult to replicate. It’s not foolproof, but in a market where duplication is inevitable, mystery can be more powerful than registration.

In essence, niche perfume brands have adapted to a legal landscape that doesn’t fully recognize the value of scent. They create holistic brand experiences, protect everything they can see or touch, and cultivate loyalty through design and narrative. Their approach is less about controlling the formula and more about owning the feeling it creates—a lesson that many industries could learn from.

The Rise of Multisensory Branding in Perfumery

With the scent itself legally elusive, niche perfume brands have embraced a more holistic strategy: creating identity through multisensory branding. By combining sight, touch, and even sound, these companies shape consumer perception using everything but the smell—building emotional and legal connections that last longer than the fleeting top note of a fragrance.

Color is often the first layer in this strategy. Whether it’s the faded beige of Le Labo’s industrial labels, the signature black-and-white minimalism of Byredo, or the deep jewel tones of Amouage, color schemes carry brand memory. In jurisdictions like the EU and the U.S., colors—when used in a consistent and distinctive way—can be registered as trademarks, provided they are not functional and are capable of distinguishing the product. It’s not about owning a color itself, but about owning its consistent use in context. Think of Tiffany blue or Louboutin red—the perfume world is starting to follow suit.

Tactile elements are also gaining importance. Penhaligon’s Portrait Collection sculptural animal-headed Victorian caps, Frederic Malle’s soft-matte labels, and the heavy, weighted feel of Maison Francis Kurkdjian’s bottles are not just aesthetic decisions—they are touchpoints of brand recognition. While more difficult to register formally, these tactile features can be protected through trade dress law or used to build evidence of acquired distinctiveness in markets where non-traditional marks are slowly gaining traction.

And then there’s sound—an often overlooked yet surprisingly powerful asset. The sound a bottle makes when opened or sprayed can become a sensory signature. Davidoff Cool Water, for instance, once explored legal protection of its spray-click sound, much like Harley-Davidson once attempted with the sound of its engine. In the perfume industry, unique spray mechanisms, magnetic closures, or bottle clicks have the potential to be protected as sound trademarks, provided they meet the criteria of being distinctive and consistently used. These sounds help establish brand familiarity and, crucially, can be recorded and submitted in MP3 form—a requirement under both EUIPO and USPTO guidelines for sound marks.

Organizations like WIPO have taken note of these developments. In its guidance on non-traditional marks, WIPO highlights the rise of multisensory strategies in branding—particularly among luxury and experience-based industries like perfumery. While traditional trademark law has lagged behind in protecting smells, the growing interest in sound, color, texture, and even motion marks suggests that legal systems are inching toward broader definitions of brand identity. Countries like Australia and Singapore have already begun experimenting with broader recognition of these elements, and the EU’s removal of the graphical representation requirement (post-2017) has opened new doors for non-traditional filings.

In a market where perfumes can no longer rely solely on scent for legal exclusivity, the future of brand protection smells a lot like sound, touch, and color. Multisensory branding isn’t just smart marketing—it’s the new legal strategy for a world that remembers feelings more vividly than formulas.

IP Law Still Lags Behind the Senses

There is something ironic about the fact that the very element that defines a perfume—its scent—is also the least protected under intellectual property law. Perfumes like Santal 33, Portrait of a Lady, and Baraonda have achieved iconic status. They have loyal followings, cultural cachet, and even inspired thousands of dupes. Yet, when it comes to legal protection, their most important asset—the olfactory signature—remains outside the enforceable reach of trademark law.

This contradiction between commercial recognition and legal vulnerability is not just theoretical. These fragrances are referenced in magazines, dissected by fragrance critics, and mimicked by fast-following brands, often with no repercussions. The core reason is structural: IP law continues to privilege what can be seen, heard, and sometimes felt, but not what can be smelled. The Sieckmann ruling still casts a long shadow, and even after more than two decades, the evidentiary and representation hurdles remain largely unchanged. While legislators have begun to open the door to non-traditional trademarks, practicality and enforcement concerns keep olfactory marks locked out.

Brands like Le Labo and Nasomatto have not responded with frustration, but with innovation. Instead of fighting a legal battle they are unlikely to win, they’ve expanded their brand narratives—investing in minimalist bottle design, textured labels, consistent typography, and even sound. They’ve recognized that what cannot be protected in the lab can be fortified at the shelf. They double down on trade dress, visual cues, and storytelling. What you see and touch becomes a proxy for what you smell. What you remember from the packaging becomes a trigger for what you associate with the fragrance. It’s not about protecting the scent in court—it's about anchoring it in the consumer’s memory.

Still, the question remains: should IP law evolve to meet the complexity of sensory branding in industries like perfumery? There’s a strong case to be made for it. The emotional power of scent is undeniable, and in a marketplace increasingly driven by experience rather than function, ignoring the olfactory dimension seems outdated. But any reform must also reckon with practicality—how do you define, record, and enforce rights over something that fades in the air and differs from nose to nose? Until those challenges are solved, the scent itself may remain a beautifully vulnerable asset.

For now, fragrance houses will continue to work at the edge of the law—building value through indirect but powerful IP tools. Their greatest creations may not be protected in the traditional sense, but they live on through packaging, sound, story, and memory. And maybe, just maybe, the absence of protection is part of what makes a truly great perfume feel so ephemeral, so human—and so unforgettable.

Sebastián Jiménez M. LL.M.

COLBS Estudio Legal

Partner