Trademarking a Smell-It’s Difficult, but it Can be Done
Humans are visual creatures. And when it comes to intellectual property, be it copyrights or trademarks, we often think that IP is related to only what we can see. But our sense of smell tells us a lot also—and in fact, smell is so powerful that it is possible to actually trademark a scent or smell.
What is a Trademark?
A trademark is something that may have little or no meaning or creative value on its own—its value comes with its association to a product or company.
If you looked at Walmart’s little yellow star, they’re just a bunch of little yellow lines. But in the right order, with the right shade, and in the right placement, you recognize that little star as being associated with Walmart.
But smells can get protection as a trademark as well. And no, we’re not talking about actual fragrances or colognes, things that have patent protection because of their unique blend that makes their smell distinctive. We’re talking about smells that by themselves may not have any special or unique formula—but they’re so related to a place or product, that they get trademark protection.
Smells that are trademarked, don’t contribute to any specific product, and can’t be functional in any way (the way a cologne’s smell is); they don’t make anything more useful and they don’t create anything new—they just associate with a business or product. So a smell that masks another smell, or a smell on a product that serves to repel animals, can’t get trademark protection because those smells serve a purpose.
Smells can be difficult to trademark. Just because you fill your store with a rose fragrance, doesn’t mean you can trademark a rose smell and prevent any other store from smelling like roses. In fact, the U.S. trademark and patent office notes that it is difficult to trademark smells—but it can be done. And yes, someone in the trademark office will actually smell whatever sample you send, in evaluating your application.
To avoid problems, most smells that are associated with locations like stores, restaurants or hotels, usually are not smells normally found in nature—they are artificially created, often specifically for the establishment where the smell is used. There must be a distinctiveness to the fragrance or smell.
Although difficult, some companies have been successful in getting smells registered as trademarks. The chain Flip Flop Shops has trademarked their store’s smell, developed to smell similar to coconuts. Some pain relief patches have a “minty” smell to them, which really has no relation to any practical use of the products, but that smell is trademarked.
Once a smell is developed, the creator, in seeking trademark protection, needs to actually describe the smell in the trademark application. This isn’t easy to do—try putting any smell in writing, and you’ll find words don’t always do justice to smells.
We can help you with your intellectual property questions. Call our West Palm Beach business attorneys with any questions you may have at Pike & Lustig today.