Capturing consumers with a range of sensory cues is important to transport them to another world. Smells are just one way that companies capture the attention and positive memories of their consumers. In fact, there is a good chance that you have smelled a trademark already!

Scents of certain products are registerable when used in a nonfunctional manner. See TMEP 1202.13. For example, a scent of cologne is functional and not registerable as cologne is designed for consumers to smell.

However, registering a scent with the United States Patent and Trademark Office (USPTO) is no easy feat. Specifically, the USPTO explicitly states that “[t]he amount of evidence required to establish that a scent or fragrance functions as a mark is substantial,” but not impossible. Id. To be registerable, the applicant must show that their scent functions as a mark and serves as an identifier of source.

So How Does a Scent Function as a Mark?

In 2018, Hasbro, Inc. successfully registered the scent of its Play-Doh with the USPTO. Anytime you open a new jar of Play-Doh, “a sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough” instantly hits your nose. This distinct scent is immediately recognizable with Play-Doh and thus serves as an identifier of source for its modeling clay. In fact, when most people are blindfolded and a jar of Play-Doh was opened, they would almost certainly realize that Play-Doh was nearby just by the smell.

What are some other famous scent trademarks?

  • Verizon Wireless owns Reg. No. 4,618,936 for the “flowery musk scent” that consumers smell when entering a Verizon Wireless store.
  • Hisamitsu Pharmaceutical Co., own Reg. No. 3,589,348 for “a minty scent by a mixture of highly concentrated methyl salicylate (10wt%) and menthol (3wt%) for pain relief patches.

Takeaway

While non-traditional trademarks pose a unique set of challenges, they can be a valuable addition to any intellectual property portfolio. As long as the scent does not serve a specific function, brands may protect this unique aspect of their business. Furthermore, strategic advertising helps to establish secondary meaning and can pave the road to registration over the years.