21 November 2024
Crayola’s Scent Trade Mark Victory
In 2024, Crayola secured a significant win by registering the distinct "crayon scent" as a trade mark in the United States after multiple rejections by the USPTO. Initially, the scent was deemed functional, as it arose from standard crayon production processes. However, Crayola successfully argued that the scent was unique to their manufacturing process, making it distinctive and registrable.
Scent Trade Marks in Australia
Scent trade marks are rare in Australia, with only two currently registered out of nearly 900,000 trade marks. Examples include eucalyptus scent for golf tees and the smell of cinnamon for non-wood furniture. To qualify, a scent must be graphically described in precise terms and function as a unique identifier for goods or services. It cannot be a natural or functional scent, such as perfume for perfumes or masking odours.
Challenges in Registration
Registering scent trade marks is difficult due to the need for clear and objective descriptions that consumers can understand. For example, vague descriptions like “a fresh scent reminiscent of the beach” are insufficient, while simple terms like “the smell of vanilla” are acceptable. Many applications fail to meet the distinctiveness threshold, especially when scents are commonly associated with similar goods, such as lemon for soap or eucalyptus for laundry powder.
Global Considerations
While Australia allows scent trade marks, the European Union does not, citing the inability to precisely and objectively represent scents. This highlights the subjective nature of smells and the technical challenges in ensuring consistency.
Key Takeaways
Scent trade marks, while unique, are challenging to register due to strict requirements for distinctiveness and clarity. Seeking early expert legal guidance during the product/brand development phase can help navigate these hurdles and improve the likelihood of successful and cost-effective registration.
