Hasbro, Inc. recently made headlines when it received a federal trademark registration for the scent of its Play-Doh product. While it isn’t impossible to register a trademark for a scent, it is rare, and it is a reminder of the many options business owners have to create connections with customers (and even make a big splash while doing it).
Scent trademarks – and other marks like tastes, colors, sounds, product designs, textures, and even moving images – are part of a larger family of marks often referred to as non-traditional trademarks. The USPTO has issued registrations on all kinds of non-traditional trademarks, including the scent of strawberry for toothbrushes, the “Nationwide is on your side” song for insurance agencies, the word “yummm” sung at the end of Red Robin restaurant commercials, and even a cherry scent for synthetic lubricants.
Registering a non-traditional trademark can help a business protect the exact ways it connects with its consumers. As businesses think more about these non-traditional marks, they may find more ways to set their goods and services apart from their competitors’. These marks can be powerful marketing tools in their own rights as well. For example, Hasbro has earned heaps of free press for its scent registration, and even markets the scent on its own as part of a perfume.
Part of the reason these kinds of trademark registrations are so rare is that they are difficult to get. The U.S. Supreme Court has made clear that features of a product are never inherently distinctive. As a result, trademark applicants seeking to protect non-traditional trademarks have a high hurdle to clear to show that the scent, taste, color, etc. has acquired distinctiveness and functions as a trademark. Is the purported mark a functional element of the product? Are there third parties using the same mark? Has the mark been used for a long time? Has the mark (not just the underlying product) been advertised by the business or reported on by the media? These are just some of the questions a business must ask about its purported non-traditional marks.
In the end, Hasbro was able to clear this hurdle and was granted a trademark registration for “a scent of a sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough.” Will this registration redefine Hasbro or its Play-Doh product? Probably not. But non-traditional trademarks could help your business mold its marketing efforts into something special, and should be considered as part of any overall branding strategy.
As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.
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