What’s That Smell?

Have you ever wondered if you can trademark a smell? The answer is yes, but it’s not easy. In fact, there are very few scent trademarks registered in the U.S. and other countries. In this blog post, we will explain what scent trademarks are, why they are difficult to obtain and what are some examples of registered scent trademarks.

a woman smelling freshly picked lavender in front of a lavender field

Have you ever wondered if you can trademark a smell? The answer is yes, but it’s not easy. In fact, there are very few scent trademarks registered in the U.S. and other countries. In this blog post, we will explain what scent trademarks are, why they are difficult to obtain and what are some examples of registered scent trademarks.

What are scent trademarks?

A trademark is any word, name, symbol, or device, or any combination thereof that can indicate the source or origin of a product or service and distinguish it from others. A trademark can also take the form of a color, sound or smell, as long as it meets certain requirements.

A scent trademark is a type of trademark that protects a distinctive and non-functional smell associated with a product or service. A scent trademark can help a brand create a memorable sensory experience for its customers and stand out from the competition.

Why are scent trademarks difficult to obtain?

To obtain a scent trademark, an applicant must prove that the scent is both non-functional and distinctive.

  • Non-functional means that the scent does not serve any practical purpose or affect the quality or cost of the product or service. For example, a perfume or an air freshener cannot trademark its scent because the scent is the main function of the product. Similarly, a natural or inherent smell of a product or a result of the manufacturing process cannot be trademarked.

  • Distinctive means that the scent has acquired a secondary meaning in the minds of consumers as a source identifier for the product or service. For example, consumers must recognize that the smell of Play-Doh is associated with the brand Play-Doh and not with any other similar products. To prove distinctiveness, an applicant must provide substantial evidence of sales, advertising, consumer surveys, industry recognition, and other factors.

In addition to these requirements, an applicant must also provide a clear and accurate description of the scent and a sample of the scent for examination by the U.S. Patent and Trademark Office (USPTO). The description must be precise and objective enough to allow anyone to identify and reproduce the scent. The sample must be stable and durable enough to withstand mailing and storage.

What are some examples of registered scent trademarks?

As of this writing, there are only 15 live and fully registered scent trademarks in the U.S.:

  • A cherry scent, strawberry scent, and a grape scent, all three owned by Power Plus Lubricants for vehicle lubricants

  • A minty fragrance for pain-relief patches owned by Hisamitsu Pharmaceutical.

  • A rose oil scent used for advertising and marketing that’s owned by Kalin Manchev

  • A bubble gum fragrance for shoes and sandals owned by Grendene.

  • The scent of chocolate for jewelry stores owned by Le Vian Corp.

  • The scent of “Play-Doh” owned by Hasbro

  • An almond scent and a vanilla scent both used for dental modeling wax owned by Harvest Dental Products

  • A banana and evergreen scent (with a hint of ammonium and kerosene) for gun-cleaning preparations owned by Bushnell

  • The “coconut” fragrance for sandals owned by Sol Imports (formerly Sandal Island)

  • The scent of oranges used for shoe polish owned by Andrew Vaughn

  • A woodsy scent with clove spice undertones for imitation leather and plant-based fabrics owned by Natural Fiber Welding.

  • A mint smell for bowling balls owned by Storm Products.

Even upon obtaining a registered trademark for a scent, it can be difficult to maintain it. For example, Verizon failed to renew their “flowery musk” scent that they had registered for use in their stores.

Scent trademarks are a rare and challenging form of intellectual property protection that can help brands create unique sensory experiences for their customers. However, they are not suitable for products or services that have a smell-related function or a natural or inherent smell. They also require a lot of evidence and documentation to prove their non-functionality and distinctiveness.

If you are interested in applying for a scent trademark or learning more about other types of trademarks, please contact us today. We have experienced trademark attorneys who can help you with your trademark needs.