Can a Scent Be Trademarked? Exploring the Boundaries of Intellectual Property Law

When you think of a trademark, images of a logo, a product name, or even a sound might come to mind. However, the world of intellectual property law is vast, and one of the lesser-known areas is the possibility of trademarking a scent. Yes, a smell. This isn't just some niche legal theory—scent trademarks are real, and they have significant implications for brands, consumers, and the future of marketing.

But how do you legally protect something as intangible and subjective as a scent? And is it even worth the effort? These are just a few of the questions that surround the complex world of scent trademarks.

What Is a Scent Trademark?

A scent trademark is essentially the legal protection of a smell associated with a product or service. Just like a logo, slogan, or color, a scent can be trademarked if it is distinctive enough and directly linked to the product or brand. However, unlike traditional trademarks, scent trademarks face unique challenges, particularly in proving distinctiveness.

For a scent to be eligible for trademark protection, it must be non-functional. This means that the scent cannot be something that naturally arises from the product’s function. For example, the smell of a perfume cannot be trademarked, because the scent is inherently part of the product. In contrast, the smell of Play-Doh—a toy meant to be molded and shaped, not sniffed—was considered distinctive and non-functional, and thus eligible for trademark protection.

The Challenges of Scent Trademarks

Trademarking a scent is a complex process, one that only a few brands have successfully navigated. One of the biggest hurdles is proving distinctiveness, a crucial element of trademark law. The smell must be instantly recognizable as being tied to a specific brand or product, and it must not be merely functional or essential to the product's use.

Consider the famous tennis ball canister example. When you pop open a can of tennis balls, that distinct scent is not there by necessity. The product could easily function without that particular smell. Thus, the scent could, theoretically, be trademarked—so long as it’s proven to be iconic and immediately linked to the product in the minds of consumers.

Another major hurdle is subjectivity. Smell is incredibly personal and can be perceived differently by different people. What smells floral to one person may be interpreted as citrusy by another. This makes it difficult to establish a universal standard for what constitutes a recognizable and protectable scent.

Additionally, many countries’ trademark laws are restrictive when it comes to non-traditional trademarks like scents. In the United States, for example, the Lanham Act allows for the protection of "any word, name, symbol, or device" that is used to distinguish goods, but the law doesn't explicitly mention smells. As a result, each scent trademark case is treated with a high level of scrutiny, and very few have been granted.

Successful Scent Trademarks

Despite these challenges, a few companies have succeeded in registering scent trademarks. Perhaps the most famous example is Hasbro’s trademark for the smell of Play-Doh, which was granted in 2018. According to the trademark registration, the scent 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.” For millions of consumers, this smell is inextricably linked to the Play-Doh brand, making it a strong candidate for trademark protection.

Another example is the scent of fresh-cut grass used in tennis balls. Wilson Sporting Goods Company successfully registered this scent in the European Union in 2001, arguing that the fragrance was unique and recognizable.

In the fashion industry, scents are often associated with high-end brands. For instance, some department stores use a signature scent throughout their stores to create a memorable shopping experience. However, whether or not these scents can be trademarked depends on their distinctiveness and the jurisdiction's approach to non-traditional trademarks.

Legal Hurdles and Global Differences

One of the most significant challenges in scent trademarks is the global inconsistency in how these marks are treated. Different jurisdictions have different thresholds for what constitutes a distinctive trademark, and some are more open to the idea of non-traditional trademarks than others.

United States

In the U.S., the USPTO (United States Patent and Trademark Office) has been relatively conservative in granting scent trademarks. The threshold for proving distinctiveness is high, and the scent must be well-established in consumers' minds as a signifier of the brand. Additionally, functional scents, such as those in perfumes or food products, cannot be trademarked. This means that the majority of scent trademark applications are rejected.

European Union

The European Union has a more open approach, although it also has high standards for distinctiveness. The Wilson tennis ball example illustrates that scent can be trademarked, but the application process is still rigorous, and only non-functional, distinctive scents will be considered.

Australia and Other Jurisdictions

Other jurisdictions, like Australia, have historically been even more resistant to scent trademarks. Australia's Intellectual Property Office has been known to reject applications for scent trademarks, citing difficulties in defining a unique scent and proving distinctiveness.

The Future of Scent in Branding

As marketing evolves and sensory experiences become more central to consumer engagement, it's possible that more brands will seek to trademark their signature scents. Scent marketing, which involves using specific fragrances to influence consumer behavior and create brand associations, is a growing industry. From hotels and casinos to retail stores and airports, businesses are increasingly using scent to create a memorable environment and leave a lasting impression.

In the future, we may see an increase in the number of scent trademarks, particularly as brands seek new ways to differentiate themselves in crowded markets. However, the legal landscape will need to evolve to accommodate this growth, possibly by creating more standardized criteria for what constitutes a distinctive, non-functional scent.

Conclusion: Is It Worth Trademarking a Scent?

While scent trademarks are rare, they offer a unique and powerful way to protect a brand’s identity. A signature scent can create a strong emotional connection with consumers, making it an invaluable part of a brand's marketing strategy. However, the challenges of proving distinctiveness and non-functionality, combined with the subjectivity of smell, make this a difficult and often expensive process.

For brands that manage to successfully trademark a scent, the rewards can be substantial. A scent can evoke powerful emotions and memories, making it a lasting and irreplaceable part of the brand experience. But for many, the obstacles may outweigh the benefits. As the legal landscape around scent trademarks continues to evolve, it will be interesting to see whether more companies take the plunge into this uncharted territory.