The Sweet Smell of Registration

Last year we took a whiff of Hasbro’s application to register the smell of its Play-Doh® for “toy modeling compounds.” We didn’t think the application was ripe for a functionality refusal, but a refusal on the ground of a lack of acquired distinctiveness seemed like a certainty. An Office Action issued on May 26th, 2017, refusing the application on the ground of a lack of acquired distinctiveness. The Office Action also included a number of Requests for Information to determine whether a functionality should issue, too. For the uninitiated, a trademark must be distinctive in order to be protectable. Because a scent mark cannot be inherently distinctive, an applicant must establish “acquired distinctiveness,” also known as “secondary meaning,” to obtain a registration. Essentially, acquired distinctiveness means that the claimed mark may not have been a symbol of the source of the goods, but because of advertising, commercial…

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