The rise of non-traditional trademarks: Can scents, sounds, flavors, or non-visible marks be registered in Spain and Argentina?

Both countries allow the registration of a wide range of signs, as long as they meet the basic requirement of distinctiveness—that is, the ability to differentiate. But the formal requirements and legal effects begin to diverge significantly.

In Spain, Article 4 of Law 17/2001 on Trademarks establishes two fundamental conditions for a sign to be registrable as a trademark:

1. It must be capable of distinguishing the commercial origin of a company’s goods or services from those of others (it is not enough to generically differentiate).
2. It must be represented in the Trademark Register in a way that allows competent authorities and the general public to clearly and precisely determine the subject matter of the protection granted to the holder. This requirement aligns with the Sieckmann test, adopted by EU trademark law.

In Argentina, by contrast, Article 1 of Law 22.362 (Trademarks and Designations) simply states that any sign used to distinguish goods or services may be registered as a trademark, without requiring that it indicate commercial origin or meet strict graphical or technical representation criteria. In practice, the Argentine trademark registration system accepts sound marks, 3D marks, flavor marks, color combinations, and other non-visible signs, although under less detailed criteria than those applied in European law.

In summary, both legal systems allow for the registration of non-traditional trademarks, but Spain applies a stricter standard, both in terms of distinctiveness (linked to commercial origin) and in the precision of representation required for registration. For businesses operating in both countries, these differences are crucial when planning a brand protection strategy.