What’s That Smell? Crayola Registers a Trademark for the Smell of its Crayons.

In today’s competitive marketplace, brands are constantly seeking new ways to stand out and connect with consumers on a deeper level. While traditional trademarks—such as logos, names, and slogans—remain powerful tools for brand protection, the rise of sensory trademarks marks a significant evolution in the world of intellectual property. Sensory trademarks go beyond the visual and verbal to encompass the full range of human senses, offering a more immersive brand experience. 

Sensory trademarks are a type of non-traditional trademark that engage one or more of the five senses: sight, sound, touch, taste, and smell. These trademarks are designed to evoke a specific response or association with a brand, creating a unique and memorable experience for consumers. Unlike conventional trademarks, which are primarily visual or textual, sensory trademarks can include:

• Sound Marks: A distinctive sound that represents a brand, such as the iconic MGM lion’s roar or the NBC chimes.
• Smell Marks: A specific scent associated with a product or service. For example, a Dutch perfume company once trademarked the smell of fresh-cut grass for tennis balls.
• Touch Marks: The feel of a product, such as the unique texture of a certain brand of packaging, could serve as a trademark.
• Taste Marks: While rare, taste marks are theoretically possible, representing a particular flavor associated with a brand.
• Motion Marks: The visual motion of a logo or symbol can be trademarked, like the rotating logo of a television network or the unique way a car door opens. 

While sensory trademarks offer exciting opportunities for brand differentiation, they also present unique legal challenges. The primary hurdle is distinctiveness. To qualify for trademark protection, a sensory mark must be distinctive enough to be associated with a single source of goods or services in the minds of consumers. This requirement can be difficult to satisfy, particularly with senses like taste or smell, which may not be as immediately recognizable as a visual logo or brand name.

Additionally, sensory marks must be capable of being represented graphically. For sound marks, this might involve submitting a musical notation or audio file. Smell marks, however, are more complex, as there is no standardized method for representing a scent graphically, making registration particularly challenging.

Another significant issue is the functionality doctrine. A sensory feature that is essential to the use or purpose of a product cannot be trademarked. For instance, the smell of a perfume cannot be trademarked if it is inherent to the product itself. Similarly, the taste of a food product cannot be trademarked if it is the primary reason consumers purchase it.

In the most recent example of a sensory mark, Crayola has secured a trademark registration for the distinctive scent of its crayons, a move that reinforces the nostalgic connection many people have with the brand. This scent, described as “a scent reminiscent of a slightly earthy soap with pungent, leather-like clay undertones,” has long been associated with childhood creativity and back-to-school memories. By trademarking this scent, Crayola not only protects its brand but also solidifies the sensory experience that distinguishes its products from competitors, ensuring that the familiar smell of crayons remains a proprietary and iconic element of the Crayola brand.If your brand, like Crayola, has a unique sensory element—whether it’s a sound, scent, texture, or something else—you might have a valuable asset worth protecting. Sensory trademarks can provide a powerful way to differentiate your brand in the marketplace. If you believe you have a sensory feature that could be trademarked, it’s essential to consult with an experienced trademark attorney. They (meaning “we”) can guide you through the complexities of registering and protecting your sensory trademarks, helping you secure your brand’s identity and