The Sweet Smell of Success

Hasbro, the American multinational toy maker, has successfully trade marked the scent of one of their most popular products, Play- Doh. In February 2017, the company filed its application to trade mark the smell of its dough like modelling clay that has been loved by children the world over since its creation in 1956.

One of the biggest hurdles in trade marking a smell is being able to graphically describe it. In its application, Hasbro characterised the smell of Play-Doh as 'a sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough'.

The company has sought to register the smell of Play-Doh in order to protect the distinctive element of the product that has become synonymous with many people's childhood's playing with the colourful clay.

Olfactory marks have been registrable in the US for some time. However, in order to successfully register one, an applicant has to show that a fragrance serves no important "practical function" other than to help identify and distinguish the brand. For that reason, perfumes and air-fresheners cannot be protected in this way

In late 2015 the EU passed two directives removing the need for "graphic representation" of trade marks, which paved the way for olfactory marks to be registrable in the EU. There has not as yet been sufficient jurisprudence to say either way whether the change has actually encourages olfactory mark registrations.

Legal and technical innovations, however, do promise to make the process easier in the future, and other non-conventional marks may become more commonplace also.

If you have any questions on the above, please do not hesitate to contact the team at McDaniel & Co. on 0191 281 4000 or legal@mcdanielslaw.com.