Though unusual, United States trademark law does permit registration of scents, colors and sounds. Scents are protectable as trademarks only if they are used in a “non-functional” manner. For example, a perfume scent is considered functional and would not be registrable since perfume is sold mainly for its fragrance. Scent marks are rare and were only recently recognized in 1990, when a California woman registered a scent for her sewing thread and embroidery yarn. The trademark is described as a “high impact, floral fragrance reminiscent of plumeria blossoms”.
Color trademarks contain one or more colors used on a product. For example, the PTO granted Owens-Corning a trademark registration for the color pink when used in association with fiberglass insulation. A color mark holder may only claim exclusive rights to use of the color in connection with a specific product or packaging. For example, it has been determined that the use of blue packaging for sugar is an infringement of NutraSweet Company’s trade dress for its product, Equal, a sugar substitute.
Sound marks may consist of a series of musical notes with or without words or lyrics accompanied by music. A classic example is the lion roar that identifies motion pictures made by Metro-Goldwyn-Mayer. Another familiar sound mark is the series of musical chimes used to identify National Broadcast Company programming.
Generally, it is more difficult to obtain registration of a color, scent or sound. The trademark applicant has the burden of demonstrating that its mark is first, a non-functional part of the product it identifies and, second, that mark identifies the source of the product. Thus, while marks related to smells, colors and sounds are unconventional, they do exist.
— Deborah A. Logan, Esq.