Can You Trademark a Scent? Play-Doh Proves You Can!
If you’ve read the National Inventors Hall of Fame® “Guide to Intellectual Property” blog series, you know the basics of intellectual property (IP) – including trademarks! Trademarks help protect the things we create and are most often associated with a word, phrase, symbol or design used to identify and promote the products and services offered by a company.
In fact, if you look around your home, you’ll likely find products from a variety of brands that contain the symbols ™ or ®. These signify trademarks. But what about elements of a brand that are not visible, such as a scent? Trademarks can protect those too!
What Kinds of Scents Qualify?
While a scent can earn a trademark from the United States Patent and Trademark Office, several considerations make it a fairly rare occurrence. For instance, the smell must be something that a consumer identifies as part of the brand’s product or service that will differentiate that particular brand from others with similar products.
Additionally, a company should offer proof that the scent is not functional by definition. The Wall Street Journal explains that the fragrance must not serve an important purpose within the product other than to help a consumer better identify the brand. This means that a perfume or candle could not receive trademark protection for its scent because the smell that it gives off is the purpose or function of the product.
The Familiar Scent of Play-Doh is Protected
Think back to your childhood – does the smell of colorful, moldable Play-Doh come to mind? The Washington Post describes the product’s smell as sweet and slightly musky, with vanilla, overtones of cherry and the natural smell of salted, wheat-based dough. While this scent does not make the dough more pliable or any easier to get out of carpets, it does have a unique association in the minds of many with Hasbro’s Play-Doh specifically.
Because the smell of the dough is easily recognizable as part of the brand, unique to Play-Doh and a component of the overall product that does not provide a necessary function required to enjoy it, Hasbro was able to secure a trademark for the scent!
Take a Deeper Dive Into IP!
To learn more about IP and to find new, relevant ways to introduce IP concepts to your children, we encourage you to check out our blog.