Reading time: 3 minutes

Yes, it is certainly possible to register a sound or a scent as a trade mark. Under the Trade Marks Act of 1995 (Cth) all “signs” are registrable, provided they meet the threshold requirements under the Act. Per section 6 of the Act, a sign includes any letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent. Sound and scent marks are referred to as non-traditional sensory trade marks and are the toughest types of marks to register. Why? As with all trade marks, to become registered a scent or sound mark must be capable of distinguishing the applicant’s goods and/or services from those of other traders, and the mark must be capable of being represented graphically. In fact, per section 40 of the Trade Marks Act of 1995 (Cth), a mark must be rejected if it cannot be represented graphically. Thus the question arises, how do you represent a sound or a scent?

Representing sound and scent marks

The primary way in which sensory trade marks are represented is by verbal description. However, it may be possible to represent a sensory trade mark via the use of:

  • diagrams;
  • graphs;
  • mathematical curves;
  • symbols;
  • musical sounds/notes; or
  • a combination of the above.

Describing sound and scent mark

Along with a graphic representation of the trade mark, for a scent or sound trade mark to be registered, the applicant must supply a clear and conscience description of the mark.

The description of the mark must be sufficient enough, so that when viewed in conjunction with the graphic representation, all the elements that make up the trade mark are clearly defined.

The registrability of sound and scent marks

A scent or sound trade mark will not be capable of being registered if other traders are likely, in the ordinary course of their business and without improper motive, to desire to use the trade mark (W & G Du Cros Appn (1993) 30 RPC 660 at 672).

Relevantly, a sound or scent trade mark will also not be capable of being registered if the sound or scent produced is functional in nature. In terms of sound marks, a sound will be regarded as being functional if it is caused by the normal operation of the item. Similarly, with respect to scent marks, a scent will be deemed to be functional if it is the natural scent of the product or is used to mask an unpleasant natural odour.

Ultimately, what will have to be show is that the scent or sound produced by the item in question is something quite apart from the goods themselves. The sound and/or scent must be capable of being used as a trade mark in it’s own right.


If you would like to know more about sensory trade marks, the likelihood of your mark proceeding to registration or simply want more information regarding the same. Why not contact our friendly team of LegalVision lawyers. We would be happy to assist you and answer any queries that you may have.


Key Considerations When Buying a Business

Thursday 11 November | 11:00 - 11:45am

Learn which questions to ask when buying a business to avoid legal and operational pitfalls, so you can hit the ground running. Join our free webinar.
Register Now

Innovation Nation: How to Make the Most of Australia’s Business Innovation and Investor Visas

Thursday 18 November | 11:00 - 11:45am

Want to expand your business into Australia? You need the right visa. Register for our free webinar to learn more.
Register Now

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.

The majority of our clients are LVConnect members. By becoming a member, you can stay ahead of legal issues while staying on top of costs. From just $119 per week, get all your contracts sorted, trade marks registered and questions answered by experienced business lawyers.

Learn more about LVConnect

Need Legal Help? Get a Free Fixed-Fee Quote

If you would like to receive a free fixed-fee quote or get in touch with our team, fill out the form below.

Our Awards

  • 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Winner – Australasian Lawyer
  • 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year - Australasian Law Awards
  • 2019 Most Innovative Firm - Australasian Lawyer