Scent marks & non traditional trademarks

Earlier this year Hasbro was granted trademark protection for the smell of its Play-Doh clay by the US trademark office. The mark had been filed for: 'a scent of a sweet, slightly musky, vanilla fragrance, with slight overtones or cherry, combined with the smell of a salted, wheat-based dough'. The product is made with this characteristic scent since 1956 and it is sometimes referred to in advertising too (campaign 2013: Stop and Smell the PLAY-DOH). Hasbro shows (with a great amount of evidence) that the fragrance has acquired distinctiveness and therefore is granted trademark protection. But would this also work in Europe?

For almost a year, non-traditional trademarks can be filed at the European trademark authorities. For example holograms, patterns, film-clips and multimedia marks. Last year our intern Romy has conducted research on this and wrote her bachelor’s thesis on the subject. Her thesis shows that, in addition to pattern marks, film-clips with sound and video are particularly popular. However, scent marks are not yet available. The reason for this is (put shortly) that an odour can’t be described and displayed specifically enough. The European Court has decided in a similar case that only a description in words and a chemical formula would be insufficient. It will therefore take some time before scent marks are accepted in the EU. However, for patterns, movie-clips etc. the doors are wide open.


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MENTOS has been selling chewing gum under the name MENTOS PURE FRESH for several years. In order to protect her rights MENTOS has registered the following trademarks: the logo MENTOS PURE FRESH, the logo MENTOS PURE FRESH 3 and a figurative depiction of the word PURE. Defendant sells chewing gum under the trademark DENTYNE PURE and has registered its logo as a trademark. Infringement or not?
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