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Marketing to the senses: Nonvisual marks for scent

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.

When considering trademarks, most people think of words used as brands, commercial slogans, stylized writing, or symbols. As we talked about recently, in a few situations, federal trademark registrations have been granted for colors when a specific shade has become distinctly linked with a product. Think about Post-It note yellow and the immediate mental association between the color and the product. 

In another kind of trademark linked to our senses, in rare cases, the U.S. Patent and Trademark Office, known as the USPTO, approves trademarks based on scent, sometimes called olfactory marks.

Scent marks 

Just recently, on May 18, Hasbro was granted a registration for the scent of Play-Doh, something most of us can muster up if we think about playing with it as children. 

According to Quartz, there are more than two million federally-registered marks currently, but only twelve of them are for fragrances. And Mental Floss reports that other countries standards for granting fragrance marks are even tougher than those that U.S. examiners use. 

Examples of U.S. scent marks allowed include: 

  • Scent of piña colada on ukuleles
  • "Flowery musk" odor in larger Verizon retail stores
  • Flip Flop Shops release coconut scent into their stores
  • Strawberry-scented toothbrushes
  • Fruit-scented engine lubricant 

As is clear from the list of examples, for a scent to be eligible for trademark protection, it cannot be part of the way the product or service functions. For example, authorities would not approve the scent of perfume worn on the body or used for an air freshener. In other words, the "scent of a product may be registrable if it is used in a nonfunctional manner," according to the Trademark Manual of Examining Procedure. 

The Manual also says that an applicant must provide "substantial" evidence to support a proposed fragrance mark. For example, in an olfactory trademark application, the registrant must submit for examiners both samples of the scent at issue and substantial evidence that the public perceives the scent as a source identifier.

Of note, the Quartz article cited an attorney for the opinion that allegations of infringements of scent marks are very rare. Still, registrations are likely to continue. As the intellectual property magazine IAM says, "Smell is said to be one of the most potent types of human memory, and businesses show increasing interest in pairing pleasant scents with their products." 

We will continue to report on unique kinds of trademarks in this space. 

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