Smelly Trademarks-Your Nose Knows

Zachary D. Messa

ZachMessa

A trademark’s purpose is to create an immediate association in the minds of consumers between the goods or services and the company offering them.  Traditionally, trademarks are directed to your sense of sight, touch, and sound.  A trademark appealing to your sight would be a word mark or logo such as Apple® or its corresponding logo.  A trademark appealing to your touch and sight would be the classic Coca Cola® bottle.  Finally, a trademark mark appealing to your hearing, such as the familiar sound of a crowd chanting the words “I BELIEVE THAT WE WILL WIN” for athletic competitions and educational services is a sound mark.

What about trademarks that appeal to your sense of smell?  Scent marks are considered non-traditional trademarks that, under certain circumstances, may enjoy federal registration such as traditional trademarks.   Scent marks may be registered with the United States Patent and Trademark Office, if the scent is non-functional (meaning that it cannot be a function of a product, like a perfume or fragrance) and has acquired distinctiveness (meaning that through continuous use of the scent mark, the consumer is likely to associate the scent with your goods or services).  Recognizing that scent marks may be the new frontier to create brand recognition, several companies maintain federal trademark registrations for the most unlikely goods, such as a pina colada scent for ukuleles, strawberry scent for toothbrushes, grape and cherry scents for motor oil, rose scent for advertising services, and coconut scent for retail stores.   In fact, one company is on the brink of obtaining a federal trademark registration for bubble gum scented flip flops.   It is clear that the United States Patent and Trademark Office believes that your nose will know that a smell can create an association between the company and the goods or services it offers.