While the U.S. Trademark Office has long allowed the trademarking of scents and smells as sensory marks, few companies apply to have scents trademarked because the application can be difficult to complete and because few companies find it necessary to enforce such trademarks. This past month, Hasbro made news by filing a trademark application to protect the scent of Play-Doh. Although Play-Doh has been around for over two decades, Hasbro only recently decided to file for federal protection of the product.

Because the trademarking of scents is rare, discussion about the process should be examined.  Like all trademarks, the applicant must successfully describe the trademark in protectible terms to the trademark examiner. Basically, Hasbro had to describe the scent in a way that was protectible.  In this case, Hasbro described the scent as “a sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough.”

Like applications to protect sounds, applications for scents fall under the category of sensory marks. The U.S. Trademark Office (USPTO) defines sensory marks as goods that are not physical, but instead, are a sound, feel, or scent that the applicant wishes to protect.  Generally, applicants will protect sensory marks in order to ensure that all aspects of particular intellectual property is protected.

Interestingly, many of these intellectual property issues have arisen because third-party sellers have begun to market wares online that capitalize on “nostalgia scents.”  For example, some Etsy shop artisans have begun to sell candles online that have claimed to capture scents such as Hasbro’s Play-Doh, which may have prompted the application for protection in the first place.

As more and more online sellers and artisans begin to produce such goods, the U.S. Trademark Office may see an increase in applications for sensory marks.  As such, it would behoove clients and intellectual property counsel alike to learn more about the protection of sensory marks. Intellectual property counsel should advise clients with famous brands about whether or not the protection of sensory aspects of famous goods is warranted.  Because the cost of trademark applications is low in comparison to the amount of protection given after a successful registration, famous brand owners should consider protecting all aspects of important goods, especially as it may allow for lucrative licensing opportunities.

Related content post on sensory marks - "sound marks":

https://www.klemchuk.com/863-avoid-the-dark-side-of-trademark-infringement-know-your-star-wars-trademarks/

About the Firm:

For more information on this topic, please visit our Trademark Enforcement service page, which is part of our Trademark Practice.

Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm located in Dallas, TX.  The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights.  The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution.  Additional information about the trademark law firm and its trademark attorneys may be found at www.klemchuk.com.

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