T.M.E.P. § 1202.13
Scent or Fragrance

Executive summary:

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1202.13 Scent or Fragrance

The scent of a product may be registrable if it is used in a non-functional manner. See In re Clarke, 17 USPQ2d 1238 (TTAB 1990), in which the Trademark Trial and Appeal Board held that a scent functioned as a mark for "sewing thread and embroidery yarn." Scents that serve a utilitarian purpose, such as the scent of perfume, would be functional and not registrable. See TMEP §§1202.02(a) et seq. regarding functionality. When a scent is not functional, it may be registered on the Principal Register under §2(f), or on the Supplemental Register. The amount of evidence required to establish that a scent or fragrance functions as a mark is substantial. Cf. In re Owens-Corning Fiberglas Corp., 774 F.2d 1116, 227 USPQ 417 (Fed. Cir. 1985).

The requirement for a drawing does not apply to scent marks. 37 C.F.R. 2.52(e). See TMEP §807.09.