Following the ECJ’s ruling in the 2001 Ralf Sieckmann case, the courts have continued to support the view that it is not possible to register smells or sounds as trademarks. An odor cannot be adequately represented graphically by verbal description because it is too imprecise. Manufactured odors (which would include scents and perfumes) may give rise to intellectual property rights that will generally be attached to information describing ingredients in / or formulas for odors or production processes (or both). This type of information has traditionally been protected by treating it as a trade secret.
By way of analogy, let’s take for example the ingredients of the world’s most famous brand of soft drinks. This information has always been kept by the company as a trade secret and its disclosure to employees or third parties has always been in the form of nondisclosure agreements. Trade secrets are generally enforced by contract.
The advantage of keeping a trade secret is that intellectual property rights can exist indefinitely as long as you manage to keep it secret. The trick is to make sure you have enough contracts (whether with your employees or contract manufacturers or other third parties) that allow you to freely disclose the ingredients and means of production of your flavorings as needed. Any misuse or unauthorized disclosure of a trade secret by a contracted party would generally amount to a breach of contract and an actionable claim in court, giving the holder the right to an injunction (when available) and possible recovery. Of Damage.