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Does Play-Doh Smell Distinct? Hasbro Thinks So

June 08, 2017
Post by Kennedy, Jonathan L.

Most of the time when we think of trademarks, we think of words, slogans, and logos.  But trademarks can be more than that.  Some companies have been able to obtain trademarks for colors.  For example, Tiffany and Co. has registrations for its Tiffany Blue, an example of which is Reg. No. 2,359,351. Similarly, 3M has a trademark for the canary yellow color of its Post-It Notes (Reg. No. 2,390,667)). Something else that can be registered is a scent and in February of this year, Hasbro filed an application for a Federal Trademark Registration for the smell of Play-Doh (U.S. Serial No. 87/335,817).  Hasbro describes the scent 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" and states the scent has been in use since at least as early as Sept. 12, 1955.

To obtain a trademark in a scent is not an easy task. Technically, the mark is considered a scent mark, which cannot be subject to inherent distinctiveness.  Thus, the applicant must demonstrate acquired distinctiveness.  Demonstrating acquired distinctiveness can be difficult, particularly for something that is hard to define such as a scent.  Facts that help establish acquired distinctiveness can include, length of use, exclusivity of use, and sales volumes. Given that Hasbro claims to have used this scent for its Play-Doh since 1955 will certainly benefit its application.  Additionally, one would assume Hasbro has significant sales of its Play-Doh products during that time.

Other companies have been successful in obtaining registrations for scents.  The aroma in certain retail stores has been trademarked as well as particular products.  For example, Verizon Wireless has a trademark on the Supplemental Register for the aroma of certain retail stores (one would assume it is hoping to move its mark to the Principal Register after establishing acquired distinctiveness). Its mark is U.S. Registration No. 4,618,936 and is described as "a flowery musk scent."  Similarly, the Flip Flop Shops have a trademark on the Supplemental Register for "a coconut scent or fragrance" in its retail stores (U.S. Registration No. 4,113,191). A Japanese pharmaceutical company trademarked (U.S. Registration No. 3,589,348) the "minty" smell of its pain relief patches describing the mark as "a minty scent by mixture of highly concentrated methyl salicylate (10wt%) and menthol (3wt%)."

Jonathan Kennedy is an Intellectual Property Attorney in the Biotechnology/Chemical Patent Practice Group at McKee, Voorhees & Sease, PLC. For additional information please visit www.ipmvs.com or contact Jonathan directly via email at jonathan.kennedy@ipmvs.com.

 


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