Play-Doh smell, The Warehouse jingle and other peculiar trademarks

Mmmm, nothing like the rich scent of Play-Doh to send you on a nostalgic journey back to your childhood. Photo/123RF.

Opinion

US toy maker Hasbro recently secured a trademark for the smell of their iconic childhood toy Play-Doh.

In doing so they shone a spotlight on the wide-ranging and sometimes quirky power of intellectual property rights - raising the question: are there limits to what can be trademarked?

In New Zealand, under the Trade Marks Act 2002, a trademark is defined as "a sign capable of being represented graphically, distinguishing the goods or services of one person from those of another person". This seems straightforward but it's the word "sign" that has been given a very wide definition and can be interpreted to include everything from a word to a colour or even a taste or smell.

New Zealand companies have embraced the many possibilities for trademarks and a search of our country's trademark register shows that businesses are making the most of the wide definition.

The Warehouse owns a trademark registration for its jingle, "the Warehouse the Warehouse where everyone gets a bargain", and similarly, Pizza Hutt has a trademark for its famous phone number jingle, "oh eight hundred eighty-three eighty-three eighty-three".

McDonald's has a trademark registration for its french fries box design, and something to keep in mind next time you pass a building site is that Fletcher Building has a trademark for the pronunciation of "GIB".

Although we do have a very wide definition, there are some "signs" for which there are no New Zealand trademark registrations, like smells and tastes. However, our IP counterparts around the globe are stretching their definition of trademarks to the very limits.

The United States leads the way as far as peculiar and eccentric trademarks go. Footwear chain Flip Flop Shops has a trademark for the coconut smell that they use in their stores. Similarly, Verizon has a trademark for the "flowery musk scent" they pump through their locations.

The Eddy Finn Ukulele Company has a trademark for the piña colada smell they apply to one of their ukulele models. They even ran into trouble with their international customers when the ukuleles lost their smell after being shipped overseas.

Gestures have been offered IP protection as well, and champion sprinter Usain Bolt has taken full advantage registering two trademarks for his signature "bolting" pose where he leans back with one arm to the sky and the other pulled back by his ear.

A trademark registration provides an exclusive right to use the trademark throughout the country in which it is registered to promote the goods and/or services it covers. This is particularly useful when a company's product has a distinctive smell, taste or sound, as a trademark offers legal protection to prevent others from trying to imitate that aspect of their brand.

An important thing for any business or world-champion athlete to remember, though, is that if you are going to apply for a non-conventional trademark it must be distinctive of the product itself.

That means you cannot generally get a trademark registration for the scent of a perfume because the scent is the very essence of the product.

Unlike Play-Doh, where the mouldable 'dough' is the product's essence and the "sweet, slightly musky" smell is simply a characteristic – as well as an indelible (now trademarked) childhood memory for many.

Rebekah Etherington is a solicitor in Simpson Grierson's intellectual property team.