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Scientific research has consistently confirmed that olfaction is strongly associated with memories and emotions. As such, the use of this less-exploited sense as a marketing ploy provides an advantage over other crowded channels, such as visual or auditory. Earlier this year, Hasbro filed an application for registration of the scent of its Play-Doh toy modeling compound as a trademark. Trademarks serve to distinguish the products and services of one company from those of a competitor in the minds of consumers. Trademarks are commonly words, designs, or combinations thereof, but other non-traditional trademarks, including scent, have been recognized by the U.S. Patent and Trademark Office. Hasbro’s application describes Play-Doh’s scent as “a unique scent formed through 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 toy company also mailed a container of the putty-like substance for the examiner to smell. In order to be granted registration, Hasbro must prove the scent of Play-Doh is distinctive. The scent mark must be unique from other marks such that consumers have come to recognize that scent as being associated with that company and its goods or services.The evidence may be either direct, including consumer surveys, or indirect, including promotional materials, revenue data, and number of years in use. Hasbro claimed acquired distinctiveness in its application based on 62 years of use, beginning in 1955. Moreover, the scent must be non-functional in that it does not serve a utilitarian purpose. More particularly, the scent cannot be necessary to the use or purpose of the product and cannot affect its cost or quality. In response to the toy company’s application, the USPTO issued an office action finding the use evidence to be insufficient. Additionally, the examiner opined that scent in the context of toy modeling compounds is ubiquitous and does not serve as a source identifier. To overcome these obstacles, Hasbro will need to submit additional evidence of the acquired distinctiveness of Play-Doh’s scent. #omnilegalgroup #trademark #Hasbro #PlayDoh