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13 March 2017Trademarks

WIPR survey: Play-Doh smell distinctive enough to be trademarked

The smell of modelling clay Play-Doh is distinctive enough to be registered as a trademark, according to the majority of WIPR readers.

In early March, WIPR  reported that toy company Hasbro had filed a US application for a Play-Doh “scent mark”.

According to Hasbro’s filing, its mark would be 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 majority of WIPR readers (70%) believe that the mark should be granted, given its acquired distinctiveness.

“Besides the trademark ‘Play-Doh’ and the notorious yellow colour of their packages, one remarkable feature of the dough is the smell. I believe it has acquired distinctive character from the use of such scent,” said one reader

Another explained that the mark should be registered, but only if the scent is something added to the manufacturing process, ie, if it “increases production cost and is not a result of the natural blending of the ingredients without the addition of a fragrance”.

“There has been a precedent set by granting the registration of ‘freshly mowed grass’ for a tennis ball. If this is a way for Play-Doh to make the product more distinct, why not?” added one reader.

On the other hand, a number of readers said the mark shouldn’t be registered because the scent is not “visible” at the point of purchase.

“Consumers might recognise the product from its scent, but would not rely on the scent when making a purchase (while they would rely on the word mark),” said one.

Another reader warned that when scents are allowed to be trademarked, it “opens an avenue for certain scents to be monopolised by ‘brand producers’”.

They added: “These monopoly rights confined to a few would be ineffectual for society’s welfare in the long run. Imagine when food aromas can be registered as trademarks, what then?”

According to one reader, nobody selects children’s modelling clay on the basis of its smell, nor would they be able to identify one brand from another based on smell.

“This application should never be granted. Sadly it seems the way that trademark law is going is further and further away from its original intention to protect consumers,” they added.

They said that trademark law is increasingly being used to provide multinationals with “unfair monopolies”.

“On that basis I wouldn’t be surprised if the application is granted,” they added.

For this week’s question, we ask: In a recent lawsuit, Forever 21 accused Adidas of going “too far” in protecting its ‘three-stripe’ trademark.  Do you agree that Adidas has been going too far?

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More on this story

Trademarks
3 March 2017   What’s in a name? What’s in a smell? US multinational toy company Hasbro has filed a trademark for a Play-Doh “scent mark”.