USA 14 Jun 2018

A scent as a trademark? Play-Doh gets a registration in the US

The game and toy manufacturer Hasbro filed an application earlier this year to obtain trademark protection for the scent of their Play-Doh modelling clay. The American Patent Office, USPTO, have now approved the application and Hasbro now holds one of few trademark registrations for a scent in the US.

Play Doh’s scent is described as a “unique scent formed through the combination of a sweet, slightly musky, vanilla-like fragrance, with slight overtones of cherry, and the natural smell of a salted, wheat-based dough”.  A container of Play-Doh was submitted as a sample of the scent, together with the application.

Hasbro considers the scent itself to be a distinct characteristic of the product, and therefore wants to transform the scent into an intellectual asset as a trademark registration. The USPTO have approved the application, and Hasbro now holds one of the only 13 approved and active trademark registrations for scents in the US.

Currently, scents cannot be registered as trademarks in Sweden. To obtain a registration in Sweden, it is required that the trademark can be reproduced graphically. Current practice also confirms that scents cannot be registered as trademarks. However, this may change soon. As of October 1st, 2017, the requirement for graphic representation of trademarks has been removed at EU level. The same rules are expected to come into force in Sweden shortly following an EU directive. These changes could enable registering scents as trademarks in regionally the EU and nationally Sweden. However, a problem when filing a trademark application for a scent in the EU is that samples are not accepted as trademark rendering. This may cause problems with getting scents registered. Whether scents will be able to become registered trademarks in the EU and Sweden will be determined by future practice.

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