While we most often think of trademarks as names, logos, or slogans, there are many other types as well.  A scent trademark is exceedingly rare, but does exist.  You might think that they would be more common.  After all, you frequently hear that scent strongly tied to memory.  However, it is difficult to register a scent trademark for several reasons.  Hasbro recently met the standards for registration of the smell of Play-Doh.  Let’s take a look at the law regarding registration of smells, along with the Play-Doh smell registration, and other scent trademark registrations.

Scent Trademark Registration

There are several requirements that a scent must meet before it can be registered as a trademark.  First, the scent has to be non-functional.  This means that it cannot be a feature of the product.  For example, you cannot register the unique scent of an air freshener, because the scent is the purpose of the air freshener.  Additionally, you must present a lot of evidence to show that a scent functions as a trademark.

The fact is, most applicants will not meet the requirements for registration of a scent trademark.  It is especially difficult to obtain such a registration on the Principal Register.  The use of a scent must be so widespread that for the most part only large companies can be successful with these applications.  Enter Hasbro.

The Play-Doh Scent Registration

Hasbro filed its trademark application for the Play-Doh smell in February 2017, and received its registration this month.  During the application process, it had to make an argument to the Trademark Office that the smell of its product functioned as a trademark.  It also had to come up with a way to describe the smell for its application.  Hasbro described the smell as: “a sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough.”  Do you think that this accurately describes the smell?

Other Scent Registrations

Hasbro had a strong case for registration of its Play-Doh scent trademark on the Principal Register.  Other businesses have faced more of an uphill battle, though.  Here are some interesting registrations for smells that ended up on the Supplemental Register:

• Registration No. 3,332,910 for “toothbrushes impregnated with the scent of strawberry.”  Of course, this registration states that the toothbrushes have a strawberry smell.  Would you want to brush with a strawberry-scented toothbrush?
• Registration No. 4,113,191 for “retail store services featuring sandals and flip flop sandals, and related accessories, namely, beach balls, insulated bottle and can covers, key chains, decals, tossing disc toys, lip balm, pens and water bottles” scented like coconut.  The smell of coconuts makes sense for a store that seems to have everything that you need for a day at the beach.
• Registration No. 4,144,511 for “musical instruments, namely, ukeleles” scented like a pina colada.  This is another tropical-themed product paired with a tropical scent.  Now if only I had some lessons and/or talent.
• Registration No. 4618936 for “retail store services featuring communication products and services and consumer electronics; demonstration of products” with a “flowery musk scent.”  Verizon owns this registration, and wanted to set themselves apart by having a distinctive smell to their stores.

Most of the scent marks on the Supplemental Register are creative attempts to strengthen the brand of products or services.  But the Play-Doh scent trademark was probably completely accidental.  The scent became a trademark because of the popularity of the product, not because it was specifically designed to acquire distinctiveness.  Hopefully you enjoyed reading about this post, and will think about it the next time you come across some Play-Doh!

Does Handling Your Own Trademark Matter Smell Like Trouble?

If you think that you might be over your head trying to perform a trademark search, or filing your own application, please call me at (480) 360-3499, email me at kevin@yourtrademarkattorney.com, or complete the contact form found on this page to schedule your free initial consultation today. I look forward to speaking with you.