The “Sweet and Musky” Smell of Play-Doh: Hasbro Awarded Non-Traditional TrademarkJuly 13, 2018

When you think of trademarks, what comes to mind? Is it golden arches atop a fast food restaurant? Perhaps the image of a partially-eaten apple emblazoned on the back of a phone or computer? Or maybe it’s the scent of sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough?

If one of those seems unlike the others to you, you’re not alone.

When discussing trademarks, most people generally think of famous symbols like the McDonald’s arches or the Apple logo. These famous marks immediately resonate in the minds of consumers, establishing a connection between the goods or services being sold and the company providing such goods or services.  Yet this function is not limited to symbols, as toy giant Hasbro has recently made clear.

Departing from the typical trademark registration, the United States Patent and Trademark Office recently granted Hasbro a trademark registration for the smell of Play-Doh, as described above.  This “non-visual scent mark,” Reg. No. 5,467,089, is one of only a handful ever granted by the USPTO.

While rare, such a strange registration accords with the fundamental principles of trademark law. Trademark rights are ultimately designed to protect marks recognized by consumers as indicative of the source of a good or service. They are a form of source-identification, providing consumers the ability to quickly and easily associate a business with a product or service. This can be done in a number of different ways. While traditional means like words and symbols clearly accomplish this purpose, so to do things like colors, sounds, designs, and even scents. Whether it’s the color blue used by Tiffany & Co. (Reg. No. 2,359,351), the shape of a Coca-Cola bottle (Reg. No. 696,147), the shape of a Porsche car (Reg. No. 2,655,378), the sound of NBC’s chimes (Reg. No. 916,522), or, as made clear by the USPTO, the scent of Play-Doh, a mark, no matter how obscure, that serves to indicate the source of a product in the minds of consumers is capable of trademark protection.

Nicholas Krob is an Intellectual Property Attorney at McKee, Voorhees & Sease, PLC. For additional information please visit www.ipmvs.com or contact Nick directly via email at nicholas.krob@ipmvs.com.