Hasbro recently succeeded in trademarking Play-Doh’s smell. The scent, that we all know from childhood, 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,” The executives of Hasbro are over the moon, as it lets the company connect with customers for years to come. Unlike other forms of intellectual property protection, like patents, a trademark can continue forever, as long as it is in use.
But what if the scent is a necessary by-product of the formulation, that will prevent others from manufacturing a children’s clay. Some of the ingredients, like the salted, wheat-based dough, are probably from the base, that enables the clay to have its flexibility while still being edible and non-toxic. If the scent is connected to the formulation, this strategy may provide a way around the time limitations of a patent, which expires after only 20 years.
Scent marks in the US are difficult to get, since the USPTO must be satisfied that the scent performs no important function other than to distinguish the brand. Also, scent is subjective and not all consumers may agree on the scent. In any event, the trademark examiner will have to find that the scent is distinctive.
The recent scent trademark protection would now require competitors to change the smell of their product, so that it is noticeably different from Hasbro’s PLAY-DOH product. This may involve the changing of a formulation, and we will see if any lawsuits are filed on that basis.
Hasbro is one of the world’s largest toymakers and has a suite of other product, including NERF, MY LITTLE PONY, TRANSFORMERS, PLAY-DOH, MONOPOLY, BABY ALIVE and MAGIC: THE GATHERING.