Non-traditional trademarks (e.g. scent, touch, and taste) are theoretically registrable according to Article 18.1 of Trademark Act implemented as of 2012 in Taiwan. The representation required of such trademark applications must be one that can be produced in a clear, precise, self-contained, objective, durable, easily accessible, and intelligible manner. However, as a scent mark is not visibly perceptible and Taiwan’s IP Office (TIPO) has not established relevant examination guidelines, the applicant generally does not have a clear picture of how to apply for a scent mark with submission of a proper representation. A scent mark filed in 2012 under Application No. 101037007 for “a unique Chinese medicine oil scent being a mixture of white winter oil and lavender oil” in Class 5 was dismissed on the grounds that the depiction of the scent mark submitted is not clear, precise or intelligible to consumers. The dismissal decision was also adhered by the IP Court and became final in 2016.
As it is rather difficult for the applicant to submit a proper representation of a scent mark to fulfill the formality requirement, the TIPO held a hearing to seek public opinions. In September 2017, the Examination Guidelines on Non-Traditional Trademark were finally amended and promulgated. In addition to setting out a regulation that a registrable scent mark must be in possession of acquired distinctiveness and non-functional, the Examination Guidelines further shed light on how to prepare the representation and depiction of a scent mark, as well as a sample thereof. According to the amended Guidelines, the representation of a scent mark could be in written form and the depiction shall be clear enough for relevant consumers to associate it directly with the scent in the consumers’ memory so that they are able to understand and recognize the applied-for scent mark. As for the sample of a scent mark, the applicant may submit, for instance, a sample of the designated goods or the packaging thereof.
So far, several scent trademark applications are still under examination. We expect that the first scent trademark will soon be registered in Taiwan.
 IP Court, 2016 Xing Shang Su Zi No. 41.
The above contents are intended as general discussion of the subject matter only and shall not be deemed as legal advice to any particular case or issue.