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Case trademark on fragrance: The first case in the U.S. to specifically address an olfactory mark was In re Clarke, 17 U.S.P.Q.

2d 1238 (T.T.A.B. 1990). The USPTO Trademark Trial and Appeal Board (TTAB) reversed the examiners decision that the applicants Plumeria blossom scented sewing thread and embroidery yarn mark was unregistrable on the principal register. In Clarke, the examiner argued that the applicant failed to explain how the Plumeria scent acted as a source indicator to consumers, and that it was de jure functional, assertedly because of the competitive need for free access to pleasant scents or fragrances. In its reversal, the TTAB reasoned: That is to say, fragrance is not an inherent attribute or natural characteristic of applicants goods but is rather a feature supplied by applicant. Moreover, applicant has emphasized this characteristic of her goods in advertising, promoting the scented feature of her goods. Applicant has demonstrated that customers, dealers, and distributors of her scented yarns and threads have come to recognize applicant as the source of these goods. In view of the unique nature applicants product, we do not believe that the failure of applicant to indicate in her promotional materials the specific scent or fragrance of her yarn (admittedly difficult to describe except in the manner that applicant has done so) is significant. In her advertisements and at craft fairs, applicant has promoted her products as having a scented nature. We believe that applicant has presented a prima facie case of distinctiveness of her fragrance mark. What is interesting about the TTABs decision in Clarke, is that in a footnote, the court narrowed the holding of the case, asserting: we are not here talking about the registrability of scents or fragrances of products which are noted for those features such as perfumes, colognes or scented household products. Nor is this a case, the TTAB explained, involving the question of descriptivenes of a term which identifies a particular fragrance of a such cases it has been held that a term is

unregistrable under Section 2(e)(1) of the Act if it merely describes an odor or other significant feature of the product. Thus, both through the case law and the language of the statute, it is well-accepted that an olfactory mark which has acquired secondary meaningwithout being utilitarianis registrable under the Lanham Act. And the most updated edition of the Trademark Manual of Examining Procedure, confirms this confirms this principle: The scent of a product may be registrable if it is used in a nonfunctional manner. principle: The scent of a product may be registrable if it is used in a nonfunctional manner