On May 15, 2018, the United States Patent and Trademark Office officially registered the distinctive smell of Play-Doh, a favorite childhood toy for many. The federal registration covers “Toy modeling compounds” and states that the trademark “is a scent of a sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of salted, wheat-based dough.” Most people’s childhood memories of Play-Doh may not be that specific but the famous toy certainly does have a distinctive and memorable smell.
In a May 18, 2018 press release, Hasbro’s senior vice president of Global Marketing for Play-Doh, Jonathan Berkowitz, said that “[b]y officially trademarking the iconic scent, we are able to protect an invaluable point of connection between the brand and fans for years to come.”
Most people outside of the trademark world are unaware that smells, along with other non-conventional categories such as colors, sounds and motions, are capable of being protected as trademarks. For example, the particular green color used on John Deere tractors, the sound of the Metro-Goldwyn-Mayer (MGM) lion’s roar, and 20th Century Fox’s animated logo are all registered trademarks.
A key consideration for trademarking is whether the smell, color, or sound in question serves as a source indicator, i.e., tells consumers that the trademarked goods or services come from a particular provider. Trademarks also tell consumers about the quality of the trademarked goods or services and the goodwill and reputation of the provider standing behind them.
So why did Hasbro go through the time, effort, and expense of trademarking the smell the Play-Doh? Among other reasons, Hasbro did so to enjoy the numerous legal benefits that come with a U.S. trademark registration. These include, among other things, enhanced potential legal damages for infringement; superior legal rights over those who subsequently use or file for the same or a confusingly similar trademark; and evidence of the validity, ownership, and exclusive right to use the registered trademark.
If you have a smell, sound, or color (or something more conventional such as a name, slogan, or logo) that you think is worthy of legal protection, you should speak with an experienced trademark attorney who can assess your trademark and work with you to take the legal steps needed to successfully register it.