Trademarking Scents and Fragrances
Without even realizing it, we are exposed to thousands of scents each day. From body odor relief products such as deodorants, odor enhancing products such as colognes and fragrances, room enhancing products like candles, essential oils, and even car fresheners: everywhere we turn, we are confronted with smells. Whether intoxicating or nauseating, scents can help us latch on to a memory, allowing us to paint a mental picture of a person, place, or thing. Not only can fragrance connect us to the world around us, but it can also serve as a unique way to amplify our individual identity.
Just as logos and slogans can enable us to connect and recognize a brand and bring forth distinct feelings, certain smells can evoke powerful emotional memories in the brain. So why is it acceptable to trademark unique marks and names, but not unique scents–which have the strongest influence in unlocking our memories? Wouldn’t it be an advantage for brands to leverage fragrances–which are intimately connected with memories and emotions–to enhance their identity and grow their customer base?
Something Smells Fishy
While there is no specific law stating that smells cannot serve as a trademark, trademarking smells is far more difficult than trademarking words and images. The law recognizes products that are scents for their own sake as “functional” aspects of the product, which prohibits them from being protected under federal trademark law. This includes things such as perfumes, air fresheners, and candles. These products were created solely to deliver a certain smell, and that’s it. On the surface, this law might seem unfortunate for odor enhancing or eliminating brands, but the functionality doctrine actually protects companies from certain exclusivity laws.
In short, if smell is inherent in a product and the primary purpose of the product itself, it is exempt from protection. These aspects can be patented, but you’ll have to go through many hoops to prove your scent is distinct, unique, and novel if you wish to patent it. Inarguably, the most difficult obstacle for scent marks is demonstrating distinctness. But that shouldn’t deter you from creating a brand that sells perfumes and fragrances!
Be like Gucci, Prada, and Burberry
Our suggestion? Create a trademark or slogan that describes and encapsulates your unique scents and then trademark the slogan. This slogan can be tied to the fragrance you intended to trademark, and consumers will begin to associate the slogan with the scent itself. Slogans, patterns, and marks can be present on the labeling and packaging of your fragrance, which consumers can mentally latch on to and ultimately serves as an indicator of your product offerings.
Trademarking a scent recipe might pose a huge challenge, but that doesn’t mean you can’t make your scent more distinguishable than other brands through branding, advertising, and marketing strategies that make yours outshine all competition. Prada, Gucci, and the trendy conglomerates of the world have been able to distinguish themselves by their brand presence and image. Sure, Gucci can’t trademark their iconic “Bloom” scent, and if someone wanted to, they could replicate its ingredient combination. But Gucci doesn’t have to worry much about other companies stealing their trademark scent recipes because their reputation speaks for itself.
So before going down any other road, first and foremost, trademark your brand name, logo, slogan, or whatever customers can use to help identify your unique brand.
Strange Scent Trademark Examples
Remember–anything that is deemed a functional aspect of a product is not subject to the protection of a trademark. That said, if you have a product that’s primary function is not to serve as a fragrance, you can leverage that to market your products. This is considered a nontraditional trademark, which is anything other than names, logos, slogans, or combination marks, that serve as indicators of the source of a brand. This includes smells and sounds.
If your product serves a purpose other than simply smelling good–or bad, but has an associated scent, there is potential to trademark. A real life example of a trademarked scent that is simply one component of a product, and designed to be experienced in tandem with the product, not just for its own sake, is Play-Doh. Believe it or not, Hasbro’s Play-Doh word and design marks and associated scent for their children’s modeling clay is one of the select few scents out there that is trademarked.
Love it or hate it, the distinct smell of Play-Doh is merely an identifying characteristic of the product. If you played with Play-Doh as a child, you’d likely be able to identify it immediately if you were blindfolded and the clay was placed near your nostrils. If you have a product that you want to help others connect with, injecting scent into the core product, without it serving as the main function, could be your gateway to connecting with your consumers.
Say you have a backpack and want to distinguish it from the rest. You can indicate to consumers that your brand is memorable and relatable by creating a distinguishable scent that your product absorbs–perhaps within the thread. This will allow the brand to stand further apart from its competitors, serving as something people can identify the product with. Consumers can recognize it simply from the smell, if it is distinct enough. This can be tough to pull off, considering many scents dissipate over time and certain products aren’t able to trap the scent when it is in open air. That said, the possibilities are endless and Play-Doh is a great role model.
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