Patent Office OKs Trademark for a Fragrance

The Patent and Trademark Office announced Monday that a scent can qualify for a trademark and decided that the protection applies to perfumed embroidery yarns sold by a Goleta, Calif., woman.

“This marks the first time in the history of trademarks that a fragrance has been approved for registration,” said Jeffrey M. Samuels, assistant commissioner for trademarks. “We are all familiar with what trademarks look like. Now we’ll see what they smell like.”

The ruling by the Trademark Trial and Appeal Board broadens government trademarks and poses new challenges, such as how trademark examiners will distinguish one scent from another.

Samuels said the office will wait to see how many requests for scent trademarks are filed before deciding what steps to take in distinguishing between smells--which he called “a subjective exercise.”

The trademark office may require applicants to bring a long-lasting sample of the smell they want to trademark to a federal depository so examiners can compare scents. Or applicants may be required to list the chemical composition of the scent, Samuels said.

In her trademark application, Celia Clarke described her yarns as scented with “a high-impact, fresh, floral fragrance reminiscent of Plumeria blossoms”--a tropical American shrub.

Clarke will win the trademark registration in February if there are no objections to the award, published today in the Trademark Official Gazette.

Clarke’s application was initially turned down on the grounds that a product’s fragrance does not qualify for a trademark. But the Sept. 19 decision of the Trademark Trial and Appeal Board will preclude others from selling yarn with the same scent or one confusingly similar to that of Clarke’s.

The appeals board awarded the registration because “fragrance is not an inherent attribute or natural characteristic of (the) applicant’s goods but is rather a feature supplied by (the) applicant.”

Samuels said the decision will not affect perfumes, because smell is an inherent function of perfume. However, James Hawes, Clarke’s attorney, said Monday’s announcement may open the way for scents of all products to be eligible for trademarks.

“Scent is what distinguishes a product for many consumers; soaps differ only, really, in scent, for example,” he said.