Toy giant Hasbro has become the latest company to join the small group of brands with a registered scent mark in the United States Patent and Trademark Office (USPTO).
The scent of Play-Doh, described as "a sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough", is said to have acquired a distinctive scent through long-standing use. A tub of Play-Doh was submitted into evidence alongside significant proof to support this claim of distinctive scent. The Play-Doh scent trade mark is one of 13 active scent registrations in the USPTO, joining a strawberry scented toothbrush and ukuleles which smell like pina colada.
Although many are familiar with the distinctive smell of Play-Doh, this comes as an unlikely victory for Hasbro as non-conventional trade marks such as scent and colour marks have been notoriously difficult to prosecute through to registration. This is due to the need to clearly indicate to consumers the origin of goods and services through the mark – an onerous task when it comes to this calibre of trade mark.
It remains to be seen whether Hasbro will seek to register this trade mark in the EU in the near future. Although the EUIPO is traditionally stricter in its approach to non-conventional trade marks, perhaps this decision indicates a trend towards an increased protection of these kind of marks. This is particularly interesting viewed in light of the additional EU rules which came into effect in October 2017 and whose provisions facilitate the registration of non-traditional trademarks such as sound, colour, pattern, motion and hologram marks. The amending rules abolished the requirement that a trade mark be capable of being represented graphically, thus paving the way for the introduction of a more diverse range of trade marks into the EU playing field.