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Long before kids spent all day playing on iPads, they spent hours and hours playing with Play-Doh, the putty-like stuff perfect for molding, throwing, and sometimes eating. And Play-Doh, of course, came with a distinctive aroma -- that strange bouquet of flour, salt, and boric acid.
Now Hasbro, Play-Doh's owner since 1991, wants to trademark that scent. In a filing with the USPTO, the company describes Play-Doh's unique parfum as "the combination of a sweet, slightly musky, vanilla-like fragrance, with slight overtones of cherry, and the natural smell of salted, wheat-based dough."
Wait, you can trademark a scent? Yes, and though it's uncommon, certain smells have been given trademark protection for the past several decades.
"Hasbro's Play-Doh scent is one of the best-known, most unique and instantly recognizable scent trademarks in the world," Hasbro trademark counsel Catherine M.C. Farrelly recently told InsideCounsel. "A federal registration will reinforce Hasbro's existing common law trademark rights in the iconic Play-Doh scent."
Still, Farrelly acknowledges that enforcing a scent-based trademark isn't always the easiest. "For word marks, trademark owners can order watch services that help them identify infringers. Those services search through the federal and state registers, the Internet, business directories and other sources for the purpose of identifying confusingly similar marks."
Perhaps Hasbro will send their IP teams out searching for competing play putties, whiffing and sniffing through the preschool's and toy stores of the world.
It's not just the difficulty of enforcing a trademark that makes scent-based marks rare. Trademark law doesn't cover marks that serve a "functional" purpose, which is why things like perfume scents don't receive trademark protection. Indeed, the first scent trademark registered came from an unlikely source -- a flowery scent used on yarn, according to Law360.
Few other scent-based marks have been registered since. Last year, the USPTO denied trademark protection to a citrus-scented mining fluid (of all things), since the smell came from an ingredient with a functional purpose. In 2013, Verizon Wireless applied to register the "flowery musk scent" it used in its stores. The company was forced to downgrade to the Supplemental Register, since other stores also "commonly use scents to create ambiance."
Still, Farrelly thinks her application has a good shot at success. "Hasbro's Play-Doh scent is one of the best-known, most unique and instantly recognizable scent trademarks in the world, and it has developed an enormous amount of goodwill with consumers since it was first used in 1955," she says. "That is precisely the type of source-indicator that the trademark law is designed to protect."
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.