Crayola Follows in Play-Doh’s Footsteps with Scent Trademark
In a legal landscape where trademark protection often focuses on logos, phrases, designs, and brand names, it may be surprising to know that scents are eligible for trademark protection with the United States Patent and Trademark Office (USPTO). Two iconic brands, Play-Doh and Crayola, have recently made headlines for securing legal protection for their distinctive aromas.
The Play-Doh Sensory Trademark
Play-Doh, the clay-like, malleable compound, infamous for its vibrant colors and use in arts and crafts within classrooms and homes, received legal protection for its scent in 2018. Hasbro, Inc. filed for the Play-Doh sensory trademark in February 2017. In May 2018, the USPTO officially registered its unmistakable scent as “a sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough”.
The Crayola Sensory Trademark
Like Play-Doh, whose scent has undeniably become synonymous with the product itself, evoking childhood memories, Crayola Properties Inc.’s crayons with their waxy scent also trigger memories of school days and creative projects.
Following in Play-Doh’s footsteps, in July 2024, Crayola registered a trademark for its crayons’ distinctive scent, as “a slightly earthy soap with pungent, leather-like clay undertones”.
Crayola’s Journey to Trademark Registration
Crayola’s journey to registering its crayon scent trademark was neither short nor straightforward, however. The trademark application was originally filed in September 2018 and was followed by a six-year battle filled with USPTO registration rejections and Crayola’s responsive arguments, finally resulting in the successful registration of the sensory trademark.
Limitations to Sensory Trademark Registration
By securing their respective trademarks, Crayola and Hasbro can prevent competitors from using similar scents in similar products, safeguarding the unique sensory experience associated with their brands.
However, the process of registering a sensory mark can be quite challenging. Crayola’s difficulty in registering its sensory trademark highlights why there are millions of registered logo, design, and character trademarks in the United States, but only around a dozen registered scent marks.
To secure a trademark for a scent, a company must demonstrate that the scent is distinctive and is something that a consumer would identify as part of the company’s brand and associated products, and thus, the source of said products. However, the company must also demonstrate that the scent is non-functional to the products themselves. This means that the scent or fragrance must serve no important or practical function other than to help identify and distinguish a brand. To illustrate, this means that the scent for a product whose purpose is only smell-related — like perfume, scented candles, or air fresheners— will be near-impossible to protect via a trademark, since scent is the purpose or function of the products.
This became a point of contention between Crayola and the USPTO during its six-year battle to register the crayon sensory trademark, as the USPTO claimed that the crayons’ scent was functional.
Nonetheless, Crayola eventually demonstrated that this wasn’t the case by successfully submitting sufficient evidence against the USPTO’s allegation that the crayons’ scent is functional, resulting in the registration of the sensory mark.
Get in Touch for Trademark Assistance
Although there are firm guidelines in place to regulate the registration of scent trademarks, it is not impossible to have them registered. Our law firm specializes in navigating the complexities of trademark law, including the registration of unique marks like scents. Feel free to reach out to us to help you protect your brand’s distinctive components.
Disclaimer: This post is not intended to constitute legal advice. Please consult legal counsel for personalized advice.
