How smell trademarks can boost your business

What you need to know (in a nutshell)

1. To trademark a scent, it is necessary to prove that the scent doesn’t serve a function in your product and that people can identify your brand with that specific scent. Also, it is extremely hard to register a scent trademark, but it’s not impossible. As the example of Play-Doh, it took a 299-page document to prove the distinctness of their scent and the association with the brand.

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Hasbro’s Play-Doh is a registered trademark, and just by smelling it you can remember its distinct scent.

The concept of trademarking a word can be traced back to the ’80s when a company exploited an exemption in the Lanham Act (1946). This act states that any phrase or symbol used for identifying products and services is eligible for protection.

The Lanham Act was ambiguous about trademarking colours, scents and sounds. But Owens-Corning took advantage of this ambiguity to register their iconic pink fibreglass insulation.

This explains the success of colour trademarks, such as Clarke’s OSEWEZ (said ‘Oh Sew Easy’).

In 1990, entrepreneurs took advantage of loopholes to trademark scents, such as plumeria-scented yarn.

Zippo’s sound is another famous example of a non-standard trademark, it’s distinctive “clink” when closing a lighter has been registered.

Registering a scent trademark is difficult, yet achievable. You must prove it has no purpose for your product and that customers can identify the brand with this smell. The trickiest part? Describing the aroma - just like registering colour marks.

Hasbro never gave up on registering the Play-Doh scent and submitted a 299-page document to back it up. This proved its distinctiveness, lack of functionality in the product itself, plus evidence that people spoke about it - proving their belief that ‘never say never’.

In 2018, Play-Doh’s sweet, slightly musky vanilla fragrance with slight overtones of cherry was recognised by an international classification for toy modelling compounds. This complex scent is a combination of wheat dough and cherries! The Play-Doh case study shows aspiring businesspeople that you must fiercely defend your brand which may include distinctive scents, even if it takes hundreds of pages to do so.

Show your brand you believe in it by getting a trademark: start the year right and protect what’s yours.