USA 13 Mar 2017

Register a scent trademark in the US – is that possible?

Hasbro, a manufacturer of toys and games, has filed a trademark application in the United States to obtain protection for the scent of their Play-Doh modelling clay.

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 argues that the scent itself can be seen as a distinct characteristic of the product, and therefore wants to transform the scent into an intellectual asset as a trademark registration.

It is not possible to register a scent as a trademark within the EU. The trademark office in Alicante, EUIPO, has said no, and the only previously registered trademark (the smell of newly cut grass, for tennis balls) has lapsed in 2006 when it was not renewed.  While it is rare for scents to be registered as trademarks in the US, it is not unheard of.

There are however difficulties in identifying the extent of the trademark rights. Should one register the content, the chemical formula or give scent samples? Will the scent endure for a long time? The chemical formula only describes the chemical substance, not the scent. This is one of the reasons that EUIPO has decided that it is not possible to register a scent as a trademark in the EU.

Whether the United States Patent and Trademark Office, USPTO, approves Hasbro’s application remains to be seen.

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