The short answer is: yes, with a few conditions! Although this form of trademarking is non-traditional, all businesses have the opportunity to trademark a scent. Play-Doh recently trademarked their iconic play-doh scent in 2018. Hasbro describes the smell as a unique cherry and vanilla smell, with a hint of wheat-based ingredients.
What scents can I trademark?
In Australia, you can trademark a scent, as long as the scent is not a functional aspect of the product. To be a functional aspect of a product means that the product has a smell-related purpose e.g. perfumes, can’t register for a scent trademark.
In order to trademark a scent, you need to be able to show that your ‘scent’ has no functional purpose towards the product. Instead, it is something that is separate from the product. It also has to be an important factor that distinguishes your brand from others and is readily associated with the product. In order to register their trademark, Play-Doh had to argue that the smell of the product was an invaluable component of their brand.
What scents can’t be trademarked?
Natural Scent of a Product
Where the scents are an inherent attribute of the goods, this will be the function of the products. Therefore, the natural scent of a product cannot be trademarked due the scent being the function of the product. This includes products such as perfume, room sprays and herbal oils.
Scents which mask the natural smell of a product
Scents which act as masking agents for natural odours of a product cannot be trademarked. This is because they have a functional purpose of masking. A common example of masking scents are adding a cherry scent to cover up the natural smell of household bleach products.
A scent which is too common
If the scent of a product is too common across one industry, it cannot be trademarked. A well-known example is detergent products which mostly have a citrus smell. It would probably be successfully argued that this scent in this product is too common for one company to trademark it.
What needs to be in the scent trademark?
The trademark needs to have a description of the scent. It should be kept in mind that descriptions are always quite subjective. Therefore, scent trademarks need to have a graphical representation. This form needs to convey all necessary information so that an ordinary person can understand what the scent is. Such a description would read similar to the following example:
“This application is a scent mark. It includes the smell of citrus applied to tyres.“
In conclusion, the description needs to include what the scent is, and how it works with the goods or services that are being trademarked.
If you have any further questions about whether you can register a trademark for your scent, you can contact a trademark lawyer today.
