“Scent Branding” Makes it Way to Federal Trademark Officials

A picture of oranges, cinnamon sticks, and nuts surrounding two small vials of dark liquid.
To further differentiate themselves, companies are filing trademarks to protect specific aromas. Source: Google Images

The Wall Street Journal recently published an interesting article on companies that have tried to trademark aromas, some successfully and others not. In an increasingly cluttered and competitive environment, companies are doing whatever they can to set themselves apart.

So called “scent branding” is popular among hotels, theme parks, casinos, retailers, and airlines, among other industries.

The article points out that, traditionally, only words, slogans, and signs were trademarked. However, protected property now includes sounds (such as the chime of Apple’s Mac computers powering on), textures (like a wine bottle that feels like velvet), and shapes (for example, the Oscar statuette). Most recently, companies have begun submitting smells to government trademark officials.

U.S. ukulele company Eddy Finn Ukulele Co. successfully petitioned for a trademark on its scent that makes its instruments smell like piña coladas. Verizon Wireless won trademark protection for its “flowery musk” that perfumes its “destination stores” in Boston, Chicago, Houston, and the Mall of America in Bloomington, Minn.

Other companies are following suit. A corporate trademark lawyer recently sent a hand-delivered parcel containing vials of a clear liquid that smelled like oranges to federal trademark officials in Alexandira, Va. He was working on behalf of Flotek Industries Inc., a Texas producer of hydraulic-fracturing fluids used to extract oil and gas from deep rocks in the earth. The scent is meant to help customers associate with the company’s fracking chemicals.

United Continental Holdings Inc. is planning to file a trademark application for its “Landing” fragrance: a “mélange” of orange peel, sandalwood, cedar and leather that is pumped into United Airlines’ lounges and boarding bridges at Chicago’s O’Hare Airport.

This development is still fairly new: of the approximately two million registered trademarks on file with the government, about a dozen pertain to scents. Of those, only three are granted full protection by being listed on the trademark officer’s principal register.

This represents the convergence of marketing and science: according to DisTherapy.com, the human sense of smell is about 10,000 times more sensitive than any of the other four senses and is physically linked to the limbic system—the part of the brain that controls and connects emotions and memories.

Walt Disney World recognized this opportunity in the late 20th century when an imaginer (who previously worked at Lockheed Martin as a rocket scientist) invented a “Scent Blitzer” delivery system to introduce aromas into Disney parks, attractions, and events. The company is known to pump bottles of a chemically manufactured scent into Main Street USA of Walt Disney World. The scent comes from the old Toll House Cookie Shop, now a Starbucks, and smells like fresh-baked chocolate-chip cookies. It also releases scents on some of its attractions: during Hollywood Studios’ Soarin,’ guests inhale the smell of oranges as the simulator flies them above a California orange grove. While these scents are not yet trademarked they are nonetheless ingrained into the guest experience.

Trademarked scents are concerning on a number of levels. Scents are largely subjective: two people can describe the same scent in two different ways and may have differing personal opinions on it. Not to mention, what will happen should a trademark examiner have a stuffy nose? Moreover, companies that make their products emit a certain odor are tasked with creating an aroma that does not quickly fade over time, even when shipped abroad. Eddy Finn Ukulele Co. faced this last problem.

In the U.S., a company must prove that a fragrance “serves no important practical function other than to help identify and distinguish a brand,” according to the Wall Street Journal article. This keeps companies that produce items such as air fresheners, perfumes and colognes, and body lotions from patenting their aromas.

Trademarked scents are even rarer outside of the U.S. No scent has European Union-wide protection. There, trademarks must be capable of being graphically represented, questioning whether it is even possible to trademark a scent.

From a marketing management perspective, here are some questions to consider:

  • Do you think that it should be possible to trademark a scent? Why or why not?
  • What companies and industries could gain the most from taking advantage of scent branding? Why? What companies and industries have the most to lose, if any?
  • Pick a country not discussed in the article and explore its trademark laws as they affect marketing.