How to Trademark a Scent Like Play-Doh

Get a whiff of this: Play-Doh, the modeling clay beloved by children (and adults) everywhere, has applied for its own trademark. Not for the name—that has long been protected—but for its scent. Law360 reported that on February 14th, Hasbro filed an application with the U.S. Patent and Trademark Office to trademark Play-Doh’s signature scent.

For anyone wondering, Eau de Play-Doh is described as being a unique combination of a slightly musky, vanilla-like fragrance combined with the natural smell of salted, wheat-based dough and slight overtones of cherry. Even if we can’t recall it smelling so specific, Play-Doh’s key word here is unique. As noted on Teen Vogue, the trademark application is being filed for the scent because it is so distinctive of the company’s goods and services.

All jokes about the putty aside, this isn’t the first time a brand has successfully trademarked a scent with the USPTO. A few previously approved smells included a plumeria blossom-scented embroidery thread issued in 1990 for California company OSEWEZ and the “flowery musk scent” that fills Verizon’s retail stores and was approved in 2014.

However, trademarking a scent isn’t as simple as trademarking a name or logo. More goes into the filing process than you’d think—here are the ins and outs of what it means to trademark a scent.

Defining the Non-conventional Trademark

As I mentioned earlier, trademarking a scent varies from filing an application for traditional marks like designs, logos, or phrases. Scents are actually categorized as non-conventional trademarks. Technically, this means these marks are in a class of their own due to not belonging to pre-existing categories. Within non-conventional marks are visible signs (like shapes and colors) and non-visible signs (like tastes and sounds). Scent marks fall into the latter as a non-visible sign for a non-conventional mark.

Overcoming Registration Obstacles

For a time, it wasn’t commonplace to register a scent mark, much less any other non-conventional mark. However, that is rapidly changing. Now more than ever, the USPTO is considering the registrability of these marks under the Trademark Act. Additionally, these marks have been noted to produce as much brand loyalty with consumers as traditional marks. For example, consider the robin’s egg blue shade of a Tiffany & Co. box. Classified as a visible sign, the color is trademarked with its own name—Tiffany Blue—and has made the brand iconic.

In order for Play-Doh to file a trademark application for its fragrance, it must overcome two primary obstacles for scent mark registration on the Principal Register:

• Prove nonfunctionality. This means that the scent is essential to the product’s use or purpose or it affects the cost or quality of the product. The mark can’t be protected as a trademark if it has features that are considered functional. For scent marks, applicants would have to show them as source identifiers without performing any significant function.
• Prove distinctiveness. Scent marks require substantial evidence to prove their distinctiveness. According to the International Trademark Association, nonfunctional scent marks may only be registered on the Principal Register with proof of acquired distinctiveness. If there isn’t enough distinctiveness in the claim, the scent will only be allowed to register on the Supplemental Register. As for the evidence required, The National Law Review notes that this includes affidavits from retailers recognizing the mark as a source identifier; advertising expenditures; and proof of sales of the relevant goods in large numbers.

What Happens Once Play-Doh’s Scent Has Been Trademarked?

The scent mark will join other famous smells recognized by the USPTO including rose-scented marketing products, the smell of piña colada on ukuleles, and mint-scented pain-relief patches. Moreover, it will continue to give scent marks the momentum they need to keep trademark registration for these non-conventional marks on the up and up, benefiting both the consumer and the brand with loyalty and a unique source that makes good scents—I mean, sense!

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from Fundera Ledger https://www.fundera.com/blog/trademark-a-scent