The Power of Sensory Trademarks

Tickling your customers’ noses with an exclusive scent may be good marketing. It may also lead to exclusive intellectual property rights. As brands seek inspiration in the senses, they should bear in mind that their marketing may create another corporate asset in the form of a sensory trademark.

Marketers’ focus is to deliver a unique experience to the consumer, appealing to multiple senses and sensations through the goods and services offered, their packaging, or the ambiance for selling or consuming them. While marketing most frequently relies on the visual sense, our other senses can forge a deep connection between the brand and the customer. Mercedes Benz seems to have figured this out in its new S550 model that offers hot-stone massage and custom scents for a spa experience in your car. In fact, the custom scent market is no longer a “step-child” according to Sue Philips of Scenterprises Ltd., a custom fragrance company. She reports a dramatic uptick in marketers using scent “to connect to their consumers in an ‘experiential’ way,” using signature scents, air infusers, and even usb drives that infuse the air with scent.

In the United States, you can obtain trademark protection, for sounds, colors, scents, tactile representations of the brand, and even flavors.  Your trademark rights will hinge on proving that the sensory experience sufficiently identifies you as the source of goods or services.

Below are some famous examples that can serve as inspiration for marketers looking to delight the customer and develop their intellectual property portfolios.

Sound Trademarks:

• NBC “chimes”
• Harlem Globetrotters “Sweet Georgia Brown”
• Club Med “Hand’s Up”

Color Trademarks:

•  Tiffany LLC’s robin’s egg blue used in all packaging
• Veuve Clicquot’s orangish-yellow coloring for its bottle label

Scent Trademarks:

• Manhattan Oil’s racecar exhaust scents in strawberry and grape

Tactile Trademarks:

• David Family Group, LLC: a leather texture wrapping around the middle surface of a bottle of wine
• Dharma Drum Mountain Buddhist Association: for mudra hand gesture in connection with educational materials

Flavors are, perhaps, the most difficult to sensory experience to protect as a trademark, requiring a showing that they are not functional.  While several cases have explored flavors as trademarks, the brands in question did not overcome the legal hurdles. Nonetheless, the United States Patent & Trademark Office has left open the possibility that a flavor trademark could theoretically exist. Of course, a name for a flavor might be protected easily.

In short, the power of the senses can translate into monetizable assets in the form of trademarks if a brand thinks proactively and creatively about its marketing.