Hasbro, Inc. filed paperwork in February to trademark the the scent of a beloved childhood toy, Play-Doh. Although rare, it is not unheard of to file for such a trademark. There have only been approximately a dozen such filings since 1990.
Section 1202.13 of the Trademark Manual of Examining Procedure (“TMEP”) specifically states that “[t]he scent of a product may be registrable if it is used in a nonfunctional manner.”
Under trademark law, The Functionality Doctrine is designed to prevent manufacturers from attempting to stifle competition. Basically, if the scent is used in a functional manner (like an air freshener or deodorant), it cannot be protected. The utilitarian features of a product can only be protected under patent law.
The first trademarked smell in the U.S. began with OSEWEZ in 1990 and was granted for the scent of plumeria blossoms for their sewing thread and embroidery yarn. The“flower blossom scent” in Verizon Wireless retail stores was also among those few businesses that were able to obtain protection.
According to Frankfurt Kurnit Klein & Selz PC, the law firm behind the Hasbro filing, the smell is described 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.”
They are claiming that although Hasbro already has “legally enforceable common law trademark rights”, obtaining a federal trademark will provide the company with added protection. They will be able to enforce their legal rights against any person or business that attempts to infringe upon the trademark by copying the scent.
It is widely believed that smell is said to be linked very closely to human memory, which gives even more power to obtaining the rights to a familiar scent.
Hasbro reportedly sells 500 million cans of Play-Doh per year, which explains how recognizable the scent has become. The firm declared, “Hasbro’s Play-Doh scent is one of the best-known, most unique and instantly recognizable scent trademarks in the world, and it has developed an enormous amount of goodwill with consumers since it was first used in 1955. That is precisely the type of source-indicator that the trademark law is designed to protect.”