Legal Protection for Your Signature Scent

Legal protection for signature scentNew modifications and interpretations of trademark law are making it easier for you to trademark your signature scent.

Scents were first protected as intellectual property in the US in 1991 for a plumeria scent on sewing thread and yarn. Most of the trademarked scents have been for scented products like bubblegum scented sandals, coconut ukuleles and strawberry scented toothbrushes.

Can you tradmark a signature scent?

In 1995, the Supreme Court expanded what could be trademarked and said,

“The law thereby ‘encourage[s] the production of quality products,’ and simultaneously discourages those who hope to sell inferior products by capitalizing on a consumer’s inability quickly to evaluate the quality of an item offered for sale. It is the source-distinguishing ability of a mark — not its ontological status as color, shape, fragrance, word, or sign — that permits it to serve these basic purposes.”

The US Patent and Trademark Office is currently considering an iconic stand-alone  scent: Play-Doh. Although it is a product based fragrance, its creator, Hasbro wants to protect the scent independently so that no one else can copy its Play-Doh scented perfume.

Recently, Verizon got a trademark on the signature scent it diffuses in its stores.

European Law

Before 2017, European law specified that trademarks had to be visual, but recently, the definition has expanded. While not explicitly allowing scent marks, the language leaves it open.

An EU trade mark may consist of any signs, in particular words, including personal names, or designs, letters, numerals, colours, the shape of goods or of the packaging of goods, or sounds, provided that such signs are capable of: (a) distinguishing the goods or services of one undertaking from those of other undertakings; and (b) being represented on the Register of European Union trade marks, (“the Register”), in a manner which enables the competent authorities and the public to determine the clear and precise subject matter of the protection afforded to its proprietor.

This is all good news for companies that have invested in creating a signature scent because it means that no other company can legally copy it. A unique scent can be an important part of your corporate identity and branding.

To learn more about creating your own signature scent, contact an Air Esscentials representative.