Earlier this year, the U.S. Patent and Trademark Office granted Hasbro, Inc. a trademark for the scent of its beloved toy modelling compound, Play-Doh. There is something uniquely distinctive and nostalgic about the scent of Play-Doh, which according to its registered trademark is defined as a “sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough”. Scents can elicit an immediate emotional response, in ways that visual and auditory cues can’t quite finesse. A quick whiff of a familiar scent can transport you to a specific place or moment in time, and in the case of Play-Doh, allow consumers to immediately associate a scent to a brand.
While few and far between, trademarks for scents and other non-traditional marks, such as taste and colour, have been recognized internationally in the past, and come 2019, these non-traditional marks will now become registrable in Canada under the amended Trademarks Act.
In an effort to harmonize the Canadian Trademarks Act (‘Act’) with international trademark regimes, significant amendments to the Act were passed in 2014 and are expected to come into effect in early 2019. Among the key changes include a broadened definition of ‘trademark’, covering non-traditional marks such as scent, taste, colour and texture, to name a few.
But how do you define a scent or taste?
A non-traditional mark such as colour can rely on a standardized system like Pantone, a colour classification system accepted by the Canadian Trademark Office, whereas defining a scent or taste poses greater challenges.
For scents, the written chemical formula of a scent would not likely be an accurate description as it represents the substance and not the scent itself. The description would need to be specific enough that the scent can be distinguished from all others. Further, the scent should not form the nature of the good itself; think perfumes and air fresheners where the very function of the good is to emit a particular scent.
Similar to scents, taste or flavour marks will need to be specified, likely through distinguished written descriptions. The challenge for a taste mark, however, lies in the functionality aspect. Where consumers generally expect a product to have a taste or flavour (food, beverage, medication etc.), registering taste or flavour marks would prove to be difficult. Whereas perhaps a flavoured, stainless steel drinking straw, that strictly functions as a means of consuming a beverage, while providing a distinctive taste, could be eligible for taste mark protection.
As brands aim to create lasting, engaging, and emotional connections with its consumers, sensory marketing beyond the traditional visual and auditory mechanisms will help to inform a brand’s identity and drive consumer behaviour. How Canadian courts will interpret the growing use of scents and tastes will remain to be seen, but if past international cases serve as any indication, registration for non-traditional marks such as scents and tastes will likely present some unique challenges.