Nearly anything can function as a trademark as long as it functions as a “source identifying” function, including the scent and smells of a product.
The main purpose of trademark law is to allow consumers to know the source of a good or service quickly by seeing a brand name, logo or nearly anything that allows consumers to quickly identify who makes a certain product or offers a service. There are many examples of different things that can function as trademarks.
Over the years, companies have identified new ways to distinguish their products such as using a specific color, a certain sound (like the NBC chimes), or even a distinctive scent or smell. There are registered scent trademarks at the United States Patent and Trademark Office (USPTO) for sandals that smell like bubblegum, pina colada scented ukuleles, fruity smelling lubricants for combustion engines.
Most recently, the USPTO registered a scent trademark for Play-Doh. Close your eyes and remember the smell of Play-Doh. Do you smell a “scent of a sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough”? That is how Hasbro, the owner of and producer of Play-Doh described the smell in their trademark application that was accepted by the USPTO.
Trademark registration for the Play-Doh scent. Underlined in red is the description of the scent
To receive a trademark registration based on the scent of a product, trademark owners need to prove the scent has “acquired distinctiveness” under Section 2(f) of the Lanham Act. What this means is that the trademark owner must show a significant share of relevant consumers, when they smell the specific scent in connection with their product, they know who produces the product.
For example, Play-Doh has smelled the roughly the same since it was first created and sold in the 1950s. Over the more than half a century of being successful, consumers and the public in general can smell Play-Doh and know exactly what it is, even if it is not in the Play-Doh container. Play-Doh could not have registered their scent trademark in the 1950s because the smell had not become distinctive.
In addition to proving a scent has acquired distinctiveness, trademark applicants of scent marks cannot merely take an image of their product and send it in as a specimen. Trademark owners must physically mail in their specimen so the Examining Attorney can smell it for his or herself.
The specimen submitted for a trademark application, since registered, for bubble gum scented sandals
The USPTO registering scent trademarks is a relatively new phenomenon but looks like it is here to say. As long as companies can prove customers know they make a product or offer a service based on a smell, it makes sense that companies can register those smells as trademarks with the USPTO.
Do you have any questions about scent trademarks or want to register your own distinctive smell as a trademark? Contact us today for a free trademark consultation and one of our attorneys will reach out to you within a day.