Legal Geek No. 98: What's That Smell? Will Play-Doh Reinvigorate the field of Scent Trademarks?

Welcome back to Legal Geek.  This week, we review an interesting field of trademark coverage, that being coverage of scents and smells, based on a recent application filed by game and toy giant Hasbro.

https://archive.org/details/LegalGeekEp98

Trademarks are granted federal registrations based on distinctiveness and whether the mark properly serves as a source identifier for goods and services, in the mind of an average consumer.  Word marks like company or product names, and the designed logos used by companies and products, are typically where the vast majority of registrations and coverage appears in this legal field.

However, there are some potential frontiers for expansion to other types of source identifiers, and scent is one of those that could be poised for a boom. 

Hasbro filed an application to register the smell of Play-Doh this month, arguing that the scent of the child toy has acquired distinctiveness over the last 60 years sufficient to make that smell identify the product and the source, AKA Hasbro.  The application describes this scent as "a sweet, slightly musky, vanilla-like fragrance, with slight overtones of cherry, and the natural smell of a salted, wheat-based dough."  That paints a mental picture fairly well for the scent Hasbro intends to cover, at least in the field of toy modeling compounds.

Since the first smell-based registration was issued in 1990 for a flower scent on yarns, only about 10 more scent registrations have successfully followed in the last 3 decades.  Most of these have been deemed to not be distinctive enough for the Principal Register where most trademarks go, leaving only some secondary rights for such scent marks.

Thus, Hasbro faces some significant hurdles in obtaining an allowance on this trademark registration.  First, proving that consumers actually associate that scent with the Play-Doh product can be difficult because of a high burden of proof required.  Second, many scent mark applications have been rejected based on being functional, or an inherent aspect of some or all of the ingredients used, as such functional parts are only covered in the U.S. by patents, not copyrights and trademarks.  A scent chosen to make a product more desirable to consumers may be deemed functional rather than source-identifying, for example.

Some experts who have opined on Hasbro's recent application indicate that while these hurdles are tough to overcome, the Play-Doh scent has a better chance than most products of succeeding at the Trademark Office.  After all, the scent is recognizable and pretty distinctive, and there's no functional reason to make modeling clay smell that particular way with cherry and vanilla overtones.  If it does register, there are some interesting hurdles in how Hasbro would actually provide a specimen to the USPTO that could be stored for future reference, and how would this be enforced by a court or evaluated objectively against the scents of competing products.  Nose experts would be needed.

The Bottom Line is, Hasbro has a good chance here to obtain a rare registration of a scent of a product, and if that happens, enough other big companies will likely take note and will try to cover their own scents.  It could lead to an interesting arms race trend in geek culture and beyond, as we expand the frontiers of possible coverage in intellectual property.

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