Trademark Law Applies to the Senses

Every aspect of starting a business takes time and energy. Owners expect their investment into the business to reciprocate -- to pay back and prosper. When a competitor uses similar language or imagery, it creates brand confusion, a loss of customers and a loss of income.

Trademarks provide security for your intellectual property. A trademark protects the fundamental concepts that define your business: your brand, your logo, and your design. While most are familiar with protecting logos, slogans, and unique aesthetic designs, it is possible to trademark additional elements that set you apart.

The Play-Doh smell
Hasbro, Inc. has filed a trademark application for the smell of their iconic toy, Play-Doh. Describing the sculpting dough's smell in detail in their application, the company argues that its unique aroma sets it apart from competitor molding clays in a proprietary fashion.

Trademark law acknowledges that a scent can be trademarked, but only if it is non-functional and distinct. This means the aroma must be essential to setting Play-Doh apart, but the smell must not affect how the toy functions. In other words, it has to be part of the brand experience, but without restricting another company's ability to create honest competition.

Legal Considerations
The main component to trademarking an aroma is its distinction versus its application. Does the aroma truly set a product apart from its peers without overlapping onto its functionality?

Legal website Above The Law notes three primary points for any business considering an aroma trademark.

  1. Scent trademarks are unique and only apply to very distinct brands.
  2. If the scent has a role in the product's function, it cannot be trademarked.
  3. Consumers need to identify the scent as unique. The producers cannot make that decision.

What is the right time to act?
It is possible to trademark a scent, but it is not an easy trademark to pursue. For the right brand in the right situation, though, the smell of a product is part of the brand's image. The complexity of this matter reflects the challenge most businesses face when deciphering the United States Patent and Trademark Office policy. Intellectual property and trademarks are essential to a business's success but can be difficult to manage. A consultation with an experienced trademark attorney can help identify which aspects set your brand apart and also qualify for legal protection from the competition.

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