You have a product with a very specific smell. It makes your product absolutely unique. In fact, the scent is so unique that you want people to associate it with your product and nothing else.
Can you register the scent as a trademark?
It is possible to register a scent as a trademark. Play-Doh has done it. Even a sewing thread has done it. But no products that were created to deliver a specific smell have been able to trademark a scent.
So if your product is a perfume or air freshener, the answer is no. But if your product is not a perfume or air freshener, most likely, the answer is yes.
What is the difference?
Functionality and Distinctiveness
The scent of the product may not be essential to the product’s function but must be distinct to that product in order for a business to register the scent as a trademark.
The scent of Play-Doh was not functional but was distinct to the product. People do not need the scent of Play-Doh to use it. They can still mold and shape the dough however they like, no matter how it smells.
If you close your eyes and think back to your days playing with Play-Doh, a distinct smell probably comes to mind. It is a vanilla-like scent. More specifically, it is a “sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough.” At least, that is how the makers of Play-Doh describe it.
Now let us go back to functionality. This is the key reason why perfumes, air fresheners, and colognes cannot register a scent as a trademark. The whole purpose of a perfume, air freshener, or cologne is to emit a specific fragrance. If you sprayed a perfume and could not smell anything, you would think the product was a dud. The products were created to deliver a specific smell.
According to the law, this means the businesses that create the perfumes, air fresheners and colognes cannot register the scents of those products as trademarks. However, if you have a product that does not require a scent to function but has a distinctive scent anyway, you can go ahead and apply for a trademark registration. What is the scent of your favorite product?