A few months ago, Play-Doh trademarked their signature scent, throwing the world as we know it into a spinning whirlwind of confusion. People the world over asked very logical questions, like–is that allowed? Why trademark a smell, anyway? And how would you even go about it?
Somewhat unsurprisingly, the process for trademarking a smell is fairly restrictive, and can only happen if you meet a specific set of qualifications.
When can you trademark a smell?
Lest you believe the entire world is up for grabs, trademark-wise, very few smells can actually be trademarked.
If you wanted to trademark the smell of the ocean breeze, you couldn’t–largely because you don’t own it. But even if you created a product that smelled uncannily like the briny ocean, it still wouldn’t be a unique smell that people associated with you and you alone…which means, again, no trademark.
What if you decided to invent a smell that was a wild, never-before-smelled mix between an ocean breeze, freshly-baked cookies, and a used bookstore? Well, if you sold it as a perfume or an air freshener, it still couldn’t be trademarked.
The Wall Street Journal explains that you can’t trademark smells that serve an “important practical function”–so if the entire point of your product is the smell, no trademark for you.
The smell of these beautiful ocean waves (thankfully) can’t be trademarked.[/caption]
But what if you made a line of extremely-cozy blankets that also, somehow, smelled like your ocean/cookie/old-book smell? If your company took off to the point where the smell elicited a nearly Pavlovian response–i.e., people would get a whiff of the smell and immediately start looking around for your cozy blankets–you’re now, finally, entering trademarkable territory.
In summary: to trademark a smell, at least in the US, your smell has to be a real part of your brand–but can’t be the only part of your brand.
Perfume companies can’t trademark their scents, because only non-functional scents can be trademarked, and scent is perfume’s ENTIRE FUNCTION.[/caption]
Why would you trademark a smell (and who’s done it before)?
Play-Doh wasn’t the first one to this particular party, but of the 10 or so other companies who have trademarked smells, Play-Doh is the most recognizable brand by far.
According to a fantastic Mental Floss article, the first trademarked smell in the U.S. was filed in 1990 by a company called OSEWEZ (pronounced “Oh Sew Easy”). They wanted to trademark the smell of their embroidery thread–a plumeria blossom smell. When the Trademark Trial and Appeal Board approved it, they opened the door to future scent trademarks like:
- Verizon: “flowery musk” scent from stores
- Grendene: bubble gum scented sandals
- Eddy Finn Ukulele Co.: Pina colada scented ukuleles
- Flip Flop Shops: coconut scent from stores
- Hisamitsu Pharmaceutical Co.: mint-scented pain-relief patches
- Lactona: strawberry-scented toothbrushes
- Manhattan Oil: fruit-scented lubricants for combustion engines
How do you trademark a smell?
If you decide it makes sense for you to trademark a smell, how do you go about it? There are three main steps you need to take before the USPTO will approve your application:
Step 1: Define the smell.
In Play-Doh’s case, they couldn’t just write “the smell of childhood,” much to everyone’s chagrin. Instead, their official smell definition is “a sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough.”
Step 2: Prove it’s non-functional.
This is where you need to successfully argue that the smell isn’t a feature of your product, per se, but that it’s still an inextricable part of your brand. Going back to the blanket example–if your blankets didn’t smell like ocean/cookie/old books, they would still be excellent blankets. The smell is just an added bonus and reinforces your brand.
Step 3: Prove it’s distinctive.
How do you prove something’s distinctive? As explained on Fundera, it’s best done with money. Are advertisers interested in your scent? Do retailers recognize the brand equity that comes from your smell? Do thousands and thousands of people associate your smell with your company? If not, you’ll have a difficult time trademarking your scent–and it’s also probably not worth it.
Because it’s so difficult to actually take a smell from “sensory experience” to “trademarked sensory experience,” the implications are far less Orwellian than they might seem at first sniff. It’s unlikely that every company under the sun will start attempting to trademark their smells. And as for Play-Doh, the most immediate impact is that nobody will be able to sell Play-Doh scented perfume or candles…which, honestly, feels like a win for the world at large.