The scent of Play-Doh® is now a registered trademark.
Over the years, numerous companies have tried, and most have failed, to register the scent of a product as a trademark. Among the exceptions are strawberry scented toothbrushes, sewing thread with a plumeria blossom scent and bubble-gum scented shoes, sandal and flip-flops.
Earlier this year, Hasbro, Inc., the maker of Play-Doh, overcame the initial objections of an examining attorney to register the scent of Play-Doh for “toy modeling compounds”.
For most scented products, the scent is a functional; think candles, perfumes, cleaning products and medicines. For perfumes, candles and air-fresheners, the scent is the essence of the product. For thing like cleaning products, cosmetics or medicines, the scent functions to make the product more appealing, or to mask an unpleasant odor. The functionality of a scent precludes registration of a mark as a source indicator.
The USPTO also has objected on the grounds that the perception of a scent may differ from one person to another; that a scent can be difficult to describe, or that a sample may degrade over time, similarly precluding its function as source indicator.
The USPTO initially refused registration on the grounds that the scent was not distinctive, and dismissed Hasbro’s claim that the scent had acquired distinctiveness through use, basing its objection on the fact that other brands of toy modeling compound were also scented.
Hasbro overcame these objections by providing detailed and voluminous evidence of distinctiveness and secondary meaning.
Hasbro provided evidence that the scents of modeling compounds cited by the examining attorney were different from the scent used in Play-Doh, and argued that the scent of Play-Doh was indeed effective to distinguish Play-Doh from the products of other manufacturers.
Hasbro supported its claim that the scent of Play-Doh had acquired secondary meaning with a declaration by an executive that more than 3 billion cans of Play-Do had been sold since 1956 and that the company had spent millions to advertise its product. In addition, Hasbro cited unsolicited media coverage of the Play-Doh scent, and more than 42,00 social media mentions of Play-Doh and its scent to demonstrate that the users of its product found its scent to be distinctive and a source indicator. Finally, Hasbro noted that the applied-for scent of Play-Doh had been in near-exclusive use for more than 60 years.
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