Tuesday, 12th June, 2018
The smell of Play-Doh registered as a trade mark
If you ever played with Play-Doh as a child, can you remember the smell when you took the lid off the tub? Was it a “sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough”?
While this description may seem a little far-fetched, it is precisely this written description of the smell that toy manufacturer HASBRO has recently managed to register as a trade mark in the United States. Acknowledging that smell is a powerful memory trigger, Jonathan Berkowitz, Global Marketing Manager for Play-Doh, said “The scent of Play-Doh compound has always been synonymous with childhood and fun…by officially trademarking the iconic scent, we are able to protect an invaluable point of connection between the brand and fans for years to come”.
Securing registration of a smell is not to be sniffed at. The registration of non-traditional trade marks such as smells, sounds, 3D marks, animations and colours can be a valuable tool, but they are notoriously difficult to register. In New Zealand, there are currently no registered trade marks for smells. There has only ever been four applications for smells filed. In 1995, for example, The Boots Company Plc tried to register the smell of cinnamon for pharmaceuticals. This one, along with the other three applications, all failed to pass the examination stage.
Although rare, it is still possible to register the smell of a trade mark if it can meet IPONZ’s following requirements for being distinctive in character:
- The smell is not an inherent or natural characteristic of the goods or services. For this reason, perfumes and air fresheners are unlikely to be distinctive as their scent is essential to their practical function; and
- The smell is not common in trade. For example, you couldn’t register the smell of coconut for tanning products or the smell of lemon for cleaning products as these smells are often used by others in the industry.
With protection of non-traditional marks starting to become more popular with kiwi businesses, it will be interesting to see when we get our first trade mark registration of a smell and what that smell will be (rotten eggs for tourism services anyone?).