What are some scents that have been trademarked?

What are some scents that have been trademarked?

A trademark is a word, phrase, symbol, or design that identifies and distinguishes the source of the goods of one party from goods produced by others. A trademark allows consumers to differentiate between similar products produced by different companies.  The rationale behind trademarks is to protect consumers from inferior quality products.  By granting the producers of goods, the exclusive right to a trademark, consumers will be able to identify goods from the producers they prefer.  Traditionally trademarks were limited to marks which could be observed using one’s eyes.  But, in the past few decades, trademark protection has expanded to include nontraditional trademarks like scents or smells.

In our prior post we discussed the requirements that a trademark applicant must meet to get a non-traditional trademark, such as a scent, registered as a trademark.  You can review that post here: Can you trademark a smell in the United States?.

It is educational to study other successful trademark applications to learn how the trademark owner was able to persuade the Untied States Patent and Trademark Office to grant the application for a scent mark.

The oldest registered scent trademarks are all registered to one person.

Registration Number – 2463044 (principal register), 2568512 (supplemental register), 2596156 (supplemental register)
Registration Date – June 26, 2001
Trademark and Product – Cherry, Grape, Strawberry scented fuel additives.  A fourth trademark was filed for bubble gum scent but the application was canceled.  The company produces a number of other scents that are not trademarked.  The prosecution history reveals that the cherry scent might have been on only scent the trademark applicant was actually using at the time the applications were filed which is why it was allowed on the principal trademark register and the other marks were placed on the supplemental trademark register.

Registration Number – 4754435  (Principal Register)
Registration Date – June 16, 2015
Trademark and Product  – Bubble Gum Scented Shoes, sandals, flip flops, and accessories, namely, flip flop bags.  As evidence of acquired distinctiveness 20 advertisements and news articles which noted the scent of the shoes, along with consumer reviews from online retailers that mentioned the bubblegum scent, were submitted as evidence of acquired distinctiveness.

Registration Number – 4618936  (Supplemental Register)
Registration Date – October 7, 2014
Owner – Cellco Partnership DBA Verizon Wireless Bell Atlantic Mobile Systems LLC
Trademark and Product – A flowery musk scent in cellphone retail stores.  From the affidavit submitted in the application it appears that only one retail location was using the scent and there was no evidence of acquired distinctiveness in the application file.

Registration Number – 2560618 (Supplemental Register)
Registration Date – April 9, 2002
Owner – Midwest Biologicals, Inc.
Trademark and Product – Bubblegum scented lubricant for metal cutting.  The trademark registration was canceled in 2009 because the trademark holder failed to renew the registration.

Registration Number – 4966487 (Supplemental Register)
Registration Date – May 24, 2016
Owner –  Le Vian Corp.
Trademark and Product – A chocolate scent in jewelry retail stores.  The trademark application did include a declaration that LeVian was the only user of chocolate scent as a trademark, but the application failed to show any evidence of consumer’s associating the scent of chocolate with LeVian.

Registration Number – 3332910 (Supplemental Register)
Registration Date – November 6, 2007
Trademark and Product – Strawberry scented tooth brushes.

As you can see from the above examples, registering a scent as a trademark is not a simple as it may seem.  The United States Patent and Trademark Office is fairly strict when it comes to the requirement that evidence of acquired distinctiveness be submitted to have the trademark registered on the principal trademark register.  If you have questions about registering a scent you use with your products it is best to consult with an experienced trademark attorney.

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