Research has proven that scent is a powerful memory trigger. The whiff of a scent can trigger a vivid memory, often linked to a feeling of being transported back in time. Smells are processed by an olfactory bulb, which connects to the amygdala and hippocampus areas of the brain, areas tied to emotion and memory. A popular toy manufacturer wants to capitalize on the powerful link between scent and brand loyalty.
Almost a year ago, the toy manufacturer Hasbro filed a trademark application for the scent of the popular modeling compound Play-Doh. Launched in the mid 1950s, Play-Doh has become a staple household toy, even earning on spot on the National Toy Hall of Fame in 1998.
Sight sound and scent
Trademarks are used to distinguish products from the offerings of a competitor and serve as a quality indicator. Consumers are willing to pay more for a brand they trust rather than a knock off version. In order to be eligible for registration, a trademark must be used in conjunction with the sale or distribution of a product and be able to identify the place of origin to consumers. Sight and sound are the two most commonly trademarked indicators. However, the United States Trademark and Patent Office (USPTO) recognizes scents can also function as identifiers.
A tough market to nose into
As consumers are bombarded with the sounds and sights of traditional advertising avenues, the scent market is comparatively less busy. Compared with the millions of active trademarks registered with the USPTO, only three scents have been granted full protection under the Principal Register and the remaining nine are protected by the Supplemental Register. Scents that occur naturally as part of the manufacturing process along with perfumes and colognes are not eligible for trademark protections.
The Principal Register affords a large umbrella of protection for distinctive marks or marks that have acquired secondary meaning. The Supplemental Register provides protection for non-distinctive or descriptive marks that are capable of acquiring distinctiveness. The Supplemental Register protections are not as strong, but still enforceable, and enables a mark to obtain Principal Registration as it acquires distinctiveness. Hasbro wanted to secure a place on the Principal Register for full protection of the scent.
Determining eligibility
In order for a scent to be eligible for a trademark protection it must be both nonfunctional and distinctive. The first scented trademark was granted in 1990 to the owner of a scented yarn and embroidery thread company. Proving the distinctiveness of scent of Play-Doh will be difficult since scents are subject to individual interpretation, but the scent must serve as a source identifier for consumers. Hasbro must also prove the scent has nothing to do with being essential to the use of Play-Doh.
Thus far Hasbro has struggled with proving distinctiveness; the USPTO didn’t find anything particularly special about the scent of Play-Doh, finding it comparable to that of other modeling compounds. The toy maker must now submit additional evidence of acquired distinctiveness as the USPTO did not find the years of use as enough evidence.
