Play, D’oh!

When I was a kid, I loved to play with Play-Doh, the colored modeling compound that’s like clay but stays soft. I had the Play-Doh barber shop. You could put characters in the barber chair and squeeze the dough out tiny holes in their heads to make their “hair” grow. Then you could trim the hair with unbelievably dull scissors.

Play-Doh was a lot of fun, so long as it didn’t get ground into the carpet. And other than the carpet, parents love Play-Doh, too, because it develops kids’ imaginations by using it in creative ways. While some uses of Play-Doh are creative, some of them weren’t thought all the way through.

Take Dennis Jackson, for example. The 55-year-old from Leicester, Massachusetts used Play-Doh to cover an anti-theft device on an expensive product at the local Walmart. His plan was to envelop the sensor so he wouldn’t set off the store’s security alarms. He was wrong.

As Jackson attempted to shoplift the item, the alarms sounded. He dropped the item and fled, thinking he had evaded capture. Walmart employees, though, discovered the Play-Doh-covered anti-theft devices, one of which contained a perfect fingerprint.

The employees turned the evidence over to the police, who subsequently shared a photo of the fingerprint. Shortly after, the Connecticut Forensics Laboratory contacted investigators to reveal the print was identified as Jackson’s.

Jackson, who also had warrants for his arrest in New Jersey and Pennsylvania, was arrested and held without bail at the Worcester County Jail and House of Correction in West Boylston.

So while he’s sitting in his cell awaiting trial, I’m sure Jackson thinks that Play-Doh stinks. And Play-Doh agrees.

As a kid, I vividly remember cracking open a new canister of Play-Doh – it had an unbelievably distinct smell, and it wasn’t yet irreversibly entwined with other colors. Hasbro, the manufacturer of Play-Doh, banks on kids associating that smell with their product. They also believe the scent, among other things, sets Play-Doh apart from other modeling clay.

Play-Doh was invented in 1956. In 2006, to commemorate the toy’s 50th anniversary, Hasbro debuted a Play-Doh fragrance. Dubbed the “eau de Play-Doh,” it was released just before Mother’s Day and came in a clear, 1-ounce spray bottle.

Hasbro feels so strongly about Play-Doh’s smell, the company asked to trademark it with the United States Patent and Trademark Office. While most businesses seek to trademark logos or slogans, some seek protection for other identifiers, such as colors, sounds, or even scents. To do so, however, the company must prove that consumers have strong associations with them, like with NBC’s familiar chimes.

Scents, though, are particularly difficult to register. The PTO’s guidelines indicate that the “amount of evidence required to establish that a scent or fragrance functions as a mark is substantial.” The Office views smells as serving a utilitarian purpose, such as with perfumes or air fresheners, and functionality can’t be trademarked. It will issue a trademark, though, if an applicant can furnish surveys and studies demonstrating that consumers relate certain smells or sounds to a particular product.

Hasbro must have done just that, as the PTO granted a trademark to Play-Doh’s smell. It is one of only thirteen active registrations for scents, along with the “flowery musk scent” used in Verizon stores and a chocolate scent used by jeweler Le Vian in its stores.

I briefly thought of trademarking the truly unique odors that can be found in my son’s bedroom, but remembered no one would ever want to duplicate them.

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Reg P. Wydeven

Elder Law and Estate Planning Attorney at McCarty Law LLP
Hoping to follow in his father’s footsteps from a young age, Reg’s practice primarily consists of advising individuals on estate planning, estate settlement and elder law matters. As Reg represents clients in matters like guardianship proceedings and long-term care admissions, he feels grateful to be able to offer families thorough legal help in their time of need.

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