Did you know you can trade mark a scent? We discuss why you might want to and how to do it in this weeks article, comparing the recent Play-Doh Scent Trademark filing with Australia’s only registered scent trademark.
There’s been a lot of news articles circulating about Hasbro’s recent application to trade mark the scent of Play-Doh. A lot of people would be surprised that you can trade mark a scent and it’s definately a possibility. However, it’s very rare. Why? Objectively, it seems like a good idea, especially if scent is strongly associated with your product. Here’s a brief run down of the difficulties with trade marking a smell (at least in Australia). And why you might want to try anyway.
Guess how many scent trademarks are registered in Australia? The answer is 1, even though it’s been possible to file for one since the mid-90s. The lucky recipient of that honour is a company called E-Concierge Australia Pty Ltd who manufacture eucalyptus scented golf tees. They don’t seem to have had much difficulty in securing the mark. Why then are there not more? Here’s 3 reasons why.
- A trade mark needs to be capable of distinguishing the goods applied for from those of other traders. For E-Concierge, we have a scent (eucalyptus) which wouldn’t ordinarily be associated with the goods (golf tees) which you can check out here. Secondly, it’s a product you wouldn’t normally purchase because of how it smells. Compare that to say a vanilla scented candle. In that case, it would be impossible to say that the scent of vanilla is exclusively associated with your particular range where there are hundreds of other vanilla scented candles on the market and smell is a dominant selling point of the product. For Play-Doh, I’d say it probably is a distinctive and recognisable scent (especially if you have kids!). But that’s not the reason it falls down.
- A trade mark needs to be capable of depiction. For a word or logo it’s easy because you can see it. Even for a sound (those can be trade marked too!) you can transcribe the notes or describe it in onomatopoeic terms (eg. a ping or a cymbal crash). The beauty of E-Concierge’s mark is that the scent is easy to describe (eucalpytus) and instantly evokes that smell in the mind (at least if you’re Australian!). Now here’s Hasbro’s description of the scent of Play-Doh.
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
Try conjuring up that scent in your mind. I couldn’t. If you told me it was Play-Doh I could. But trying to describe the smell of Play-Doh without saying the word Play-Doh is almost impossible. That’s going to be huge stumbling block for Hasbro.
3. A trade mark needs to function as a trade mark. It’s hard for a scent to function as a primary trade mark when a name or logo is much better at communicating brand identity. Consumers look at products before they smell them. If the product is packaged up, you might not even smell it until after the transaction is made. One way to get around that is for the packaging to effectively communicate what the scent is. Another way is for the product to be sold free of packaging which keeps in the scent. For instance, with our golf tee example, it’s the type of product you could expect to find in bulk in a tub at the front desk at the golf shop without any other branding. In that case, the scent functions beautifully as a trade mark because you can pick it up, smell it and think “hey, that’s one of those eucalyptus smelling golf tees I’ve heard about”. Play-Doh is a product which comes in its own distinctive branded tub and usually sealed so you would not have the impact of the scent until you have purchase it. In that case, even if the scent is distinctive, it’s hard to say it’s functioning as a trade mark if it’s not contributing to the decision to purchase the product.
Why it’s a good application anyway
Given the difficulties identified, why do it? It’s pretty simple, actually. It’s great marketing! For the relatively inexpensive cost of filing a trade mark application, they have secured valuable publicity and created a discussion point around the product. Evoking scent is also a powerful trigger for nostalgia, which itself triggers the purchasing instinct. So well played Hasbro!
Andrew Petale is the Principal, Lawyer and Trade Marks Attorney of Y Intellectual Property. If you’d like to trade mark a scent (or anything else), he can be contacted at firstname.lastname@example.org.