Intellectual Property in the World of Fragrances and Sensory Marketing

Written By Sebastián Farje, David Santos, & Abedallah Kuraydli

Artwork By Esther Bret

Even if you never studied law, nor watched 9 seasons of Suits; everyone has definitely heard the word patent at least once and everyone has a gist of what a patent is. In short, a patent is a right that recognizes the ability to use and distribute the patented invention. This prevents others from manufacturing, selling, or using it without the consent of the title owner.

Moreover, patents exist in our society to recognize, reward, and protect our human ingenuity and intellectual property. On top of that, patents prevent others from benefiting and “enjoying the fruits” of what does not legally belong to them.  In many jurisdictions, a distinction is made between Intellectual and Industrial Property, the first has to do with Copyright for artistic/literary works or any creation where the personality of the author is reflected, while the latter covers inventions relating to industrial creations, like a machine, a product design, or a vaccine. As the owner of the title, you have the right to decide who can produce/use your invention or sell it, which sometimes can be more convenient. Patents, however, do not last forever as they usually expire 20 years after the date of issue. 

Furthermore, the world of patents is truly extraordinary for the mere fact that it reflects the extent to which we care for our creations and standing out in competitive markets. That is why we are going to talk about patents for fragrances. They are interesting because the perfume or fragrance is patentable, but the scent is not. This means that when it comes to titles that protect creations in the industry, we cannot talk about odors; there is no method to objectively identify a smell, and precisely for a patent “it doesn’t qualify as a composition of matter” (Adam, 2020). In other words, there is no way we can encapsulate a smell itself and prove it is the same/different as another one. Therefore, what is patented is the combination of ingredients that result in the fragrance. Suppose that Versace and Fragonard release two perfumes with the same smell., there would be no problem as long as either their formulas are different, one lets another produce the perfume with its patented formula, or they co-own the patent.

On another note, patents are not without consequences. Patents are usually not cheap to secure; larger companies can handle the cost, but smaller ones will likely struggle to afford it. To be more precise, the price of a patent in Spain can range between 792.88€ and 1,186.55€, excluding the annual fees, the bureaucracy, and the time spent on it (at least one year) (OEPM, 2021). More importantly, a patent forces the business to disclose the exact formula, which can be problematic despite having it legally protected. For this reason, some choose not to secure a patent; this may be the better option in some situations, especially if their product is hard to replicate.

What many firms do instead is to protect their fragrance formula under Trade Secret Law. Trade Secrets are a type of intellectual property rights that, contrary to patents, are not to be revealed nor registered. In this case, the firm or owner takes measures to keep the formula of the fragrance secret, which often involves non-disclosure and/or non-compete agreements that prevent any employee from giving out the formula to the competition. Here the problem is that the formula would be protected as long as it is not revealed because once it becomes public, this legal protection ends, and any other firm can quickly come and secure a patent before the actual inventor.

But why would a firm want to patent a fragrance? It has to do with positioning, which is the position a business, a product or a service occupies in the customers’ mind. Many brands have realized that the key to an excellent positioning lies in customers’ feelings. This is known as Sensory Marketing, a strategy in exponential growth between firms that intend to position themselves through sensory experiences. Did you know that human beings can only remember 1% of what they touch, 2% of what they hear, 5% of what they see, and 35% of what they smell? (Brainvestigations, 2018)

You have probably noticed that there are companies using sensory marketing like:

Starbucks, whose stores have a characteristic coffee smell, is not just selling coffee, they are selling an experience to all their customers. Have you ever tried to pass through a Starbucks coffee without buying something? Probably not. Again, this is positioning. Even if you don’t like coffee, right after smelling the Starbucks coffee, you will probably want to taste it. As an interesting fact, Starbucks cares about sensory marketing to the extent that they stop selling sandwiches in their stores because they did not want to change the smell that characterizes the American company.

Another example is Cadillac, the General Motors premium car brand. Like the previous example, this brand demonstrates again the importance of sensory marketing in this day and age. Cadillac conducted an experiment a couple of years ago to determine if the fragrance of their cars was truly relevant when buying a new car. After reading this article the conclusion may not surprise you, since they concluded that their total sales increased when their cars were perfumed by a fragrance known as Nuance. As a result of this study, the company decided to patent Nuance, inspiring other brands from the same industry as Audi or Rolls-Royce (USPTO, 2020). 

Probably one of the first companies to implement this strategy was Abercrombie & Fitch, and after it, other clothing brands use certain fragrances or their brand’s perfume in their stores. (Blankense, 2018) This is because they have learned the strength that perfumes can have towards potential customers, to the extent that they can create a bond between the customer and the brand itself. A&F has been one of the most successful and rewarded companies regarding the use of this strategy. They were able to create a perfume, Fierce, that nowadays can be recognized all over the world. To take advantage of this, A&F perfume their stores at least hourly, managing to attract a huge number of new customers.

This business tactic is so the consumer associates these distinct and pleasant scents with the brand; therefore, some brands are responsible for registering these sensory tools. Nowadays, either a graphic or a text description of the product is required; it must be clear, intelligible, durable, easily accessible, and maintain the highest possible degree of objectivity (PONS Escuela de Negocios, 2019). Prior to the development of international treaties and international law, securing a patent was easy, some brands could register odors for their products just by describing them, but that is either no longer possible or as simple to do in most countries.

Sources

Adam, N. (2020, July 13). Can Perfume be Patented? (Answered). Patent Rebel. https://patentrebel.com/can-perfume-be-patented-answered/. 

06 – Cuestiones basicas patentes y modelos utilidad. (s/f). Oepm.es. (2021, September 13). http://www.oepm.es/cs/OEPMSite/contenidos/Folletos/06-cuestiones-basicas-patentes-modelos.html

Neurociencia y marketing sensorial: Estimula las ventas con los 5 sentidos. (2018, October 31). Brainvestigations.com. https://www.brainvestigations.com/neurociencia/marketing-sensorial-ventas/

USPTO. (s/f). CADILLAC. Uspto.report. (2021, September 14) https://uspto.report/TM/88744440

Cómo se registran las marcas olfativas. PONS Escuela de Negocios. (2019, December 13). https://www.ponsescueladenegocios.com/2019/07/12/como-se-registran-las-marcas-olfativas/. 

Blankense, V. (2018, August 10). México ya patenta olores. PLAYERS of life. https://playersoflife.com/nacional/negocios/mexico-ya-patenta-olores/. 

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