Logoscents: Smells as Trademarks

In the age of multisensory marketing it’s no longer adequate to rely on a word or phrase to identify a branded product. A logo, color scheme, or container shape can speak just as powerfully as a trade name. If so, the manufacturer would be wise to protect these features as part of its intellectual property. Trademark law in the United States allows all sorts of ways to identify and distinguish commercial goods. For example, the tone sequence of NBC’s corporate chimes, the pink color of Owens-Corning fiberglass, and the shape of the Coca-Cola bottle are all registered trademarks under the doctrine of “trade dress.”

It was only natural that someone would register a scent as a trademark. The first to do so was Celia Clarke of Goleta, California who sold yarn and embroidery thread infused with the scent of plumeria blossoms. (Plumeria is the botanical name for frangipani, the fragrant tropical flower from which Hawaiian leis are made.) Clarke’s 1988 application for a scent trademark was denied by the examining attorney at the U.S. Patent and Trademark Office, but she appealed and won. She registered trademark number 1639128 on March 26, 1991 with this description: “The mark is a high impact, fresh, floral fragrance reminiscent of plumeria blossoms.”

Evidently Clarke’s line of scented goods, sold under the brand name Clarke’s Osewez (oh-so-easy, get it?) wasn’t a success. She cancelled the trademark in 1997.

Following in her footsteps, a company in Pompano Beach, Florida filed an intent-to-use trademark application in 1996 for a lemon fragrance to be used in laserjet printer toner. They abandoned the mark two years later.

The first commercially successful product with a trademarked scent is the Fuel Fragrances line produced by the Manhattan Oil company of Redondo Beach, California. These fuel additives give the exhaust of your lawn mower or nitro funny car a distinctive bouquet. The company sells nineteen varieties including Burn Out Blueberry, Peel Out Pina Colada, and Turbo Tangerine. Three of them—the cherry, strawberry, and grape scents—were trademarked back in 1995 and 1997. (Bonus link! The company’s spokesmodel page is SFW, at least if you work in an auto body shop.)

Meanwhile, Amyris Biotechnologies of Emeryville, California recently applied for a trademark on a citrus scent for its synthetic biodiesel fuel made from sugarcane (Serial Number 76693238). Smart marketing move—biodiesel exhaust usually smells like french fries and the production plants can stink. What’s wrong with a little refreshing citrus in the Age of the Goracle?

In 2005, the Minnesota paper goods manufacturer Smead registered six scent trademarks—apple cider, peppermint, vanilla, peach, lavender and grapefruit—for use in file folders, expanding files, and the like. Yummy. Should be a hit in the medical records department.

(Pop quiz on intellectual property law: Is it a problem that Manhattan Oil has trademarked Victory Vanilla scent for a fuel additive and Smead has taken vanilla for file folders? Correct answer is no: they are in different classes of trade and unlikely to be confused by the typical consumer.)

The office will soon smell even better when Japan’s Pentel company follows through on its June, 2008 application for a trademark on a white rose and lily of the valley combination (Serial Number 77511730). There are already scented pens and markers on the market, but Pentel may intend to use a single corporate logoscent for all its stationary, pens, pencils, and markers.
While trademark law is getting a lot more fragrant in the U.S., companies in the European Union will have trouble joining the fun. According to a review in the Journal of Intellectual Property Rights, European trademark registrars have take a “regressive line” that “makes it very difficult, if not impossible, to register a smell as a mark.” Apparently providing a chemical formula and verbal description of the scent is not legally sufficient. Scent trademarks will not be permitted in the absence of a “thorough smell classification system.”
Good luck with that, my friends!