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Dollars and scents: Trademark disputes over smells

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.


Dollars and scents: Trademark disputes over smells 

Traditionally, trademarks have consisted of logos or brand names that are uniquely associated with a particular company. However, trademarks aren't necessarily limited to logos or names. In rare cases, they can be a nonconventional part of the product -- such as its scent.

Registering a smell is much more difficult than registering a logo, but it is possible, and some companies are attempting it. This year Hasbro applied for a trademark to protect the unique odor of one of its most iconic products: Play-Doh.

If you have young kids or have otherwise spent time around this particular children's product, you can probably conjure up the scent in your mind. You may not describe it exactly like Hasbro does (a slightly musky, vanilla-and-cherry scent combined with a salty wheat odor), but if you smelled a colorful lump of this substance, you would probably identify it as Play-Doh without question.

What does it take to obtain trademark registration for a smell?

If you are wondering whether you should apply for a trademark for your own fragrant product, keep these three points in mind:

1. The scent can't be a functional part of the product. For instance, you can't trademark the smell of an air freshener because that's what the product does. The smell is utilitarian, the main point of the product, not a feature that serves no other purpose than to identify the product as yours.

2. The scent must be quite distinctive. All trademarks - whether conventional or nonconventional - must be distinctive. If the average consumer can't smell a difference between your product and another one, it's probably not unique enough to serve as a trademark.

3. Be prepared to provide evidence (and lots of it). The Trademark Manual of Examining Procedure specifically states that the "amount of evidence required to establish that a scent or fragrance functions as a mark is substantial."

The last point above doesn't mean that you should simply forget about the idea of registering your scent, but it does mean that you would be well advised to consult with a seasoned legal professional. A lawyer skilled in trademark law can provide the valuable counsel you need to make the most compelling case possible.

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