Trademarks are essential tools to distinguish the uniqueness of different brands. Companies can appeal to their consumers’ senses to capture their attention and create an immediate association between a smell and a brand.
What is a Florida scent trademark? Read on to find out.
What is a Florida Scent Trademark? – The Fundamentals
The United States Patent and Trademark Office (USPTO) allows scents of certain products to be registered as trademarks.
Section 1202.13 of USPTO’s Trademark Manual of Examining Procedure provides that:
“The scent of a product may be registrable if it is used in a nonfunctional manner
Scents that serve a utilitarian purpose, such as the scent of perfume or an air freshener, are functional and not registrable
When a scent is not functional, it may be registered on the Principal Register under §2(f) or the Supplemental Register (if appropriate)
The amount of evidence required to establish that a scent or fragrance functions as a mark is substantial”
The Lanham Act is the core federal act governing trademark laws in the United States. There is no explicit language in the Act to determine the eligibility for non-traditional marks used in commerce for federal registration.
Please note that the traditional definition of a trademark encompasses “any word, name, symbol, or device, or any combination thereof used to identify the origins of a specific product or service.”
Throughout the years, the USPTO understood that scents are not automatically excluded from trademark protection simply because the statute does not have explicit language to determine whether it is possible to trademark smells, colors, or sounds.
As long as a scent can function and fulfill the purpose of a trademark, it is eligible for federal registration with the USPTO.
Applying for a Scent Trademark with USPTO – Taking a Closer Look
As expected, the USPTO has strict criteria to determine whether a scent can be registered as a trademark. The primary element of any federal trademark is its distinctiveness.
The applicant’s scent can either be inherently distinctive or feature distinctive characteristics through the consumers’ association of the scent with the applicant’s goods or services.
Trademark Federal Statutes and Rules 37 C.F.R. §2.52 (e) specify that “an applicant is not required to submit a drawing if the mark consists only of a sound, a scent, or other completely non-visual matter. For these types of marks, the applicant must submit a detailed description of the mark.”
One of the most complex aspects involved in a scent trademark application is providing evidence of distinctiveness. This process is often expensive, as the applicant must provide substantial proof to avoid rejection or requests for further evidence.
In most cases, applicants submit evidence of the scent’s distinctiveness in the form of advertising materials, expenditures with advertising, brochures, and statements (affidavits) of reputable dealers or retailers recognizing the applicant’s scent as an identifier of recognizable goods.
Failing to demonstrate a scent’s distinctiveness will result in a denial from USPTO’s examiners, as they will conclude that the scent does not identify the source of goods and does not meet the definition of a trademark.