Fragrance As a Trademark

When you hear the musical note sequence, G, E, C, played on chimes which, for the benefit of readers without musical knowledge, goes “bing bong bing,” do you think of a broadcasting company? When you hear the sound of a creaking door, do you think of a particular radio program? When you smell a “high-impact, fresh, floral fragrance reminiscent of Plumeria blossoms,” do you think of scented sewing thread and emhroidery yarn? All of the foregoing intangible, non-visual devices are trademarks.

A trademark, as defined, in part, by the United States Trademark Act “...includes any word, name, symbol or device or any combination thereof...” which identifies or distinguishes the goods of a manufacturer or merchant from those manufactured or sold by others. Symbols and devices can include such things as color, shape, smell, sound or configuration. Sound is a non-visual device that can function as a sound mark. Some familiar sound marks that everyone recognizes include the NBC chimes and the sound of a creaking door that identified the mystery program, “Inner Sanctum.”

Like sound, fragrance also is a non-visual device which helps sell products. But unlike sound, no fragrance had heen accorded protection as a trademark by the United States Patent and Trademark Office until September, 1990, when the Trademark Trial and Appeal Board ruled in favor of Celia Clarke d/b/a Clarke’s OSEWEZ. In that decision, the Board ruled for the first time that fragrance can be capable of serving as a trademark to identify and distinguish certain types of products.

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