Can A Smell Serve As A Trademark?

I’ve had several people email and message me about the Play-Doh trademark, so it’s time to do a segment on America’s favorite modeling clay. We’re all shocked — shocked! — to learn that the smell of childhood favorite Play-Doh is now a registered trademark. How did this happen? We all remember picking Play-Doh out of the carpet, and scraping the dried remains off of the tablecloth after an afternoon’s play. And now that iconic scent is a registered trademark of Hasbro, Inc. The mark is described on the registration certificate as a “non-visual Play-Doh scent mark.”

The trademark — registration number 5,467,089 for “Toy modeling compounds” in International Class 028 is described in the registration as “a scent of a sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough.” Why do I feel like we are describing wine, rather than kids’ toys, here? I’ll pause a moment while those of you who have children retrieve a can of Play-Doh brand modeling clay to see if the description is accurate.

As I’ve said before, anything can serve as a trademark if it identifies the source of the goods and services. Colors, sounds, designs, and yes, even smells can serve as source identifiers. In the case of Play-Doh, the scent of the formula — unchanged, apparently, over the decades of the product’s existence — is apparently so recognizable that it has become associated with the iconic childhood plaything. Hasbro, Inc. is claiming use of this scent back to September 12th, 1955, which is the day Play-Doh debuted.

What’s necessary for a scent to serve as a trademark? Well, remember that trademarks have to be non-functional, so if the purpose of your scent is functional — a cologne, for example, or an air freshener, then that scent is not registrable as a trademark. The scent must be associated with the source of the goods, not just be a thing that smells good.

I tried to imagine how one would submit a specimen for a scent (we talked earlier about specimens) and a quick perusal of the trademark application revealed that the specimen was a “container of PLAY-DOH modeling compound having the scent,” the same having been dispatched to the Patent and Trademark Office via overnight post.

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