Many inventors create new perfumes, so the question we want to answer today is whether they can patent the perfume they’ve created. Patents are intellectual property rights that grant inventors a monopoly over the invention for a limited period of time, usually 20 years from the time an inventor files his utility patent application.
Can Perfume be Patented?
The short answer is that only the composition of perfume can be patented, the scent itself cannot be patented. Said differently, only the mixture of ingredients that go into perfumes can be patented. The USPTO has even created an entire classification system that deals with perfume patents. Just remember, the scent of perfume itself cannot be protected with a patent because it does not fall under the definition of a patent because it does not qualify as a composition of matter, but the unique mixture of ingredients that go into perfume can be patented.
Those who invent new perfumes often do not seek to patent them because part of filing a patent application requires the disclosure of all of the ingredients that go into the perfume. Patent applications become public after a short period of time. Therefore, many perfume makers choose not to patent their perfume to avoid having the ingredients become public.
If you choose to patent your perfume, just know that you will have to disclose everything that goes into making your perfume to obtain the broadest patent protection possible. For many, making this broad of disclosure is not the smartest thing to do, especially if you have a really unique and commercially successful perfume that’s difficult to reverse engineer.
That said, if you successfully patent a new and unique mixture of ingredients for a perfume, you will be able to restrict others from using, making, selling, or offering to sell a perfume that has a similar mixture to the one you’ve patented.
However, in the past, large perfume makers have erred on the side of caution and have not sought to patent their perfumes. They realize that patents grant important intellectual property rights, but not important enough to disclose the exact ingredients and quantities that go into making their successful lines of perfumes.
Can You Protect Your Perfume with a Design Patent?
You cannot protect perfume using a design patent, this is so because design patents protect the aesthetic or ornamental appearance of an object. Here, perfume does not fall within the protection of design patent law because perfume itself does not have an appearance that can be protected.
That said, while the perfume inside of the perfume bottle cannot be protected with a design patent, the perfume bottle or packaging can be protected with a design patent if they have a new and unique appearance.
Of course, for your perfume bottle to qualify for a design patent, you will have to show that your perfume bottle is new and unique and you are in fact the inventor of the design that’s applied to the bottle.
To protect the design of your perfume bottle or its packaging, you will have to prepare and file a design patent application with the USPTO. Design patents are fairly easy to get so long as you comply with all of the patent office’s application requirements.
Once the patent office issues or grants your design patent, you can restrict others from using a perfume bottle that has a similar design to the one you’ve patented. This protection lasts for 15 years from the date the patent office grants your design patent application.
Can You Protect Your Perfume with a Trademark?
Now that we’ve discussed that you can protect the mixture of ingredients that go into a perfume with a utility patent, and the design of the perfume bottle using a design patent, you should know that you can trademark the name of your perfume by registering your trademark with the USPTO.
If you have a brand of perfume that your customers use to identify you as the source of the perfume, you can protect that brand (whether it’s a name or logo) by filing a trademark application with the trademark office.
Registering your perfume trademark with the USPTO, gives you nationwide protection over the brand of your perfume, allowing you to prohibit others from using your trademark brand (name or logo) on their own perfume bottles wherever they may be in the United States.
If someone infringes on your trademark by labeling their perfume as originating from you, you will be able to sue them for trademark infringement. If your lawsuit is successful, you will be able to get a court order, ordering them to seize their infringing activities.
Also, you can protect the scent of your perfume with a trademark if your scent is one that identifies you or your business as the source of the perfume. To protect the scent of your perfume with a trademark, you are required to send a sample of the perfume to the trademark office. If you’ve invented a very popular and commercially successful, it may be worth protecting the scent of it with a trademark.
Trade Secret Protection for your Perfume
Since patents require the disclosure of all of the ingredients that go into a perfume, perfume makers often opt to protect their perfumes under trade secret law. Trade secret law allows perfume makers to protect the formula of their perfume without having to publicly disclose the ingredients of the formula. By allowing perfumer makers to keep the formula secret, perfume makers don’t have to worry about other parties copying the formula to make a similar, competing fragrance.
How Much Does it Cost to Patent Your Perfume?
If you’re seeking to protect the mixture of ingredients that go into your perfume, you should expect to pay anywhere between $5,000 and $10,000 to protect your invention with the patent office. The majority of the cost associated with patenting your perfume comes in the form of attorney fees involved in the preparation and filing of your utility patent application.
The second portion of fees associated with patenting your perfume comes from fees that the USPTO charges inventors to patent their inventions. The patent office charges filing fees, patent search fees, and patent examination fees that are approximately $1,000 in total. Also, if the patent office grants you a patent on your perfume, you should expect to pay a hefty issuance fee that ranges between $250 to $1,000, depending on the size of the business applying for the patent.
Also, if the patent office grants your utility patent application, you will be responsible for making maintenance fees on the patent for your perfume. Three maintenance fees must be made at years 3.5, 6.5, and 11.5 years.
Deadline to Patent Your Perfume
Patent Law states that an inventor of any composition of matter must file his patent application with the USPTO within one year of publicly disclosing, selling, or offering to sell the perfume mixture to be patented.
While the USPTO offers this one year grace period, other countries do not, instead they require inventors to file their patent application prior to publicly disclosing or offering the perfume for sale.
So, if you have a perfume that you want to protect with a patent, make sure that you apply for protection no more than 12 months after publicly disclosing or offering your perfume for sale.
Do You Need a Lawyer to Patent Your Perfume?
The USPTO allows inventors to represent themselves in patent and patent-related matters. So, if you are an inventor you are free to prepare and file a patent for your perfume. Although it’s allowed to do so, the patent office recommends that inventors hire an attorney to prepare and file their patent application because the patent process is complex and requires a professional, who is able to pay close attention to detail. Making even seemingly minor mistakes could get your patent application rejected, costing you more and money.
Patenting a perfume tends to be difficult because of all of the ingredients that go in and the process that’s used to create them. So if you have a commercially successful perfume that you have to patent, contact a patent attorney or patent agent to assist you with the preparation and filing of your patent application.
We have covered whether a perfume can be patented? We have concluded that while the scent of perfume cannot be patented, the mix of ingredients in a perfume formula can be protected by a utility patent. While utility patents are not the most popular form of protection for perfume, they are available for perfumes. Many opt to protect their perfume formula as a trade secret to avoid disclosure of their formula. That said, if you have any general questions or comments, please feel free to leave them in the comments section below.