The ‘Nonvisual Play-Doh Scent Mark’: Can It Really Be a Source Identifier?

By Katherine Escalante

Can you put a value to a certain smell? Play-Doh thinks so. In February, Hasbro, Inc. filed its application for the scent of Play-Doh. Scent has a powerful way of evoking particular emotions in consumers. We all have a scent that brings us back to a cherished memory — something unique to our experiences growing up. While I can admit that Play-Doh has a distinct scent, I could never quite tell you what it smelled like. To me Play-Doh smelled like… well… Play-Doh.

The fragrance itself is described as a “unique scent formed through the combination of a sweet, slightly musky, vanilla-like fragrance, with slight overtones of cherry, and the natural smell of a salted, wheat-based dough.” While it is rare for a scent to be trademarked in the United States, it is not unheard of. The first scent to be trademarked was a floral fragrance “reminiscent of Plumeria blossoms” used on yarn in 1990. Consumers tend to view unusual features of a product as a way to make it stand out from the others, not to designate who made it, placing a heavy burden on those that want to trademark scents.

Licensed by Hasbro, Demeter Fragrances created ‘eau de Play-Doh’ perfume to mark the toy’s 50th anniversary.

In order to overcome the substantial threshold of registering a scent mark on the Principal Register, an applicant must overcome two primary obstacles: (1) proving nonfunctionality and (2) proving distinctiveness. For the first element, U.S. law doesn’t protect marks that serve any “functional” purpose beyond designating the source of the goods, preventing monopolization of a feature that competitors need to use. Meeting that nonfunctional requirement is harder for smells, which often arguably also serve a utilitarian purpose, such as masking an odor that arises from the chemicals or the process used to manufacture the product. The second element is also an issue, specifically, proving that consumers associate a smell with a brand enough that it can serve as a trademark. However, perfumes replicating this scent might provide evidence of the secondary meaning needed. In Play-Doh’s favor, Hasbro has licensed to Demeter Fragrances, which makes and sells fragrances inspired by familiar everyday scents, the right to develop a Play-Doh fragrance. As a result, Demeter Fragrance created an “eau de Play-Doh” perfume to mark the toy’s 50th anniversary. They describe the fragrance as “that fresh, just-out-of-the-can, eau de Play-Doh aroma” that will instantly transport you “back to childhood.”

Many questions are still left unanswered. Is there an objective way to describe a smell in order to judge whether other companies are offering products likely to cause confusion? How does one preserve a certain smell? Nevertheless, Play-Doh is one of those products that we have all been exposed to at one point or another. If there is one scent that can overcome the burden required to register a scent, it may be Play-Doh.

Katherine Escalante is a second-year law student at Wake Forest University School of Law.  She holds a Bachelors of Arts in International Relations and Global Studies.  She is currently a staff blogger for the Journal of Business & Intellectual Property Law at Wake Forest University. Upon graduation, she intends to pursue a career in Intellectual Property Law.