Trade marks, in their most traditional forms, are anchored in sight and sound—logos, names, and jingles. These sensory markers are the silent ambassadors of brands, instantly recognisable and almost inescapable in their ubiquity. Yet, some companies dare to move beyond these familiar boundaries, staking a claim in the elusive territory of scent—an intangible yet powerful marker of identity.
Securing a scent trade mark is no ordinary feat. It’s not simply a matter of ownership, it’s an act of persuasion. To succeed, a company must convince others that this elusive trace, this sensory marker, belongs exclusively to them. It’s a battle that blends legal strategy with an appeal to memory and emotion.
This article explores Crayola’s triumph in securing the iconic smell of its crayons as a registered trade mark, illustrating that trade marks can transcend the visible and audible to capture something deeply emotional. This achievement is a bold reminder that the essence of a brand lies not just in its visuals or sounds, but in the intangible feelings and memories it evokes.
The unique power of smell
Among the five senses, smell is often considered the most mysterious. Unlike sight or sound, which can be recorded and reproduced with precision, scent is fleeting, intangible, and deeply personal. It lingers momentarily and then vanishes, leaving behind only a memory. Yet, this elusive quality is what makes smell such a powerful trigger for emotion and recollection.
Science reveals why this connection is so profound. The power of scent is rooted in the brain’s unique processing of olfactory information. Unlike sight or sound, which are processed by the thalamus before reaching the areas of the brain responsible for emotion and memory processing, smells bypass this middleman and connect directly to the brain’s emotional centre, the limbic system. This connection makes smell a deeply emotional and personal sense, capable of triggering vivid memories and intense feelings. This is why scent is often described as the most unique sense, able to evoke nostalgia, pleasure, and even discomfort in a way that other sensory stimuli cannot.
Smells not only transport us, they brand themselves into our emotions, forging associations that are potent and durable. This makes scent a powerful tool for branding, used to craft environments, conjure nostalgia, and imprint identity. Marcel Proust’s narrator famously illustrated this phenomenon in In Search of Lost Time when he encounters a madeleine dipped in tea, and the aroma spirals him into an involuntary memory, unspooling scenes of his childhood with a vividness unmatched by sight or sound.
Crafting a sensory identity
Historically, trade marks were confined to tangible elements—names, designs, and logos—capable of clear definition and replication. By contrast, smell was dismissed as too subjective and transient to qualify. Modern trade mark law has since evolved, recognising the potential of sensory branding. To register a scent as a trade mark, a business must prove that a scent is distinctive, non-functional, and unmistakably tied to the product’s source. Achieving this is no easy feat. Scent is shaped by memory and culture, making it difficult to quantify or define universally. As a result, only a handful of scent trade marks have been registered globally.
The US led the way on 19 September 1990 when the US Patent and Trademark Office (USPTO) granted a trade mark registration for the scent of fresh flowers reminiscent of mimosa for sewing and embroidery threads. However, the scent wasn’t protected as the odour itself, but rather as the fragrance of the product. This decision speaks to a more specific point of distinction—the US trade mark system requires proof of secondary meaning, meaning that the scent must not only be distinctive but recognised by consumers as uniquely tied to the brand.[1] This system contrasts with the legal systems in many other jurisdictions, such as the European Union, which have different standards for trade mark registration.
The European Union has allowed the registration of the smell of freshly cut grass for tennis balls in a rare but significant decision.[2] The United Kingdom has also recognised scent trade marks, allowing registration of the fragrance of roses on tyres[3] and the smell of bitter beer for flights used in darts.[4] However, the UK’s practice is evolving, and some scent trade mark applications, like one for the scent of cinnamon for furniture, have been rejected.[5] Even in the Benelux region, only certain categories, like cosmetics, have successfully registered scent trade marks,[6] indicating that the legal landscape for olfactory marks remains complex and subject to regional variations.
In Australia, out of nearly 900,000 registered trade marks, only two are for scents, underscoring their exceptional rarity.[7]
This context highlights the significance of Crayola’s accomplishment. In a landscape where registrations for scent trade marks are exceedingly rare, Crayola has achieved a remarkable milestone: capturing a scent not just in our minds but in law. After a six-year battle with the USPTO, Crayola successfully registered the smell of its crayons as a trade mark—a triumph that blends legal achievement with cultural resonance.
The Proustian crayon
The Crayola story begins in 1885, with the founding of Binney & Smith, a small company started by cousins Edwin Binney and C. Harold Smith. Originally, this business wasn’t about crayons at all—it focused on producing pigments for industrial use, including the carbon black used to make tyres and printing ink. But the dawn of the 20th century brought a shift in focus, as the company recognised a growing demand for affordable, safe art supplies for schools and children.
In 1903, Crayola crayons were born. The brand name itself was a small act of creativity, combining the French word “craie” (chalk) with “ola”, a nod to “oleaginous”, or oily. The result was an evocative name that hinted at the smooth, vibrant qualities of its new product. The first box, priced at a modest five cents, contained eight crayons in simple colours: black, blue, brown, green, orange, red, violet, and yellow. Over the decades, Crayola expanded its colour palette and cemented its place in the cultural fabric. By the 1950s, the brand had introduced iconic shades like Periwinkle and Cornflower, colours that transcended the art table to become part of children’s vernacular. Crayola wasn’t just selling crayons—it was shaping how generations saw and described the world.
And then there was the smell. Even in its earliest days, the distinctive aroma of Crayola crayons stood out, though it was more an accident of chemistry than design. The combination of paraffin wax and pigments created a scent that was both oddly familiar and unique. Over time, that smell became inseparable from the experience of using Crayola products, a sensory signature that etched itself into childhoods everywhere. Described as “a slightly earthy soap with pungent, leather-like clay undertones”, the aroma is a gateway to childhood memories. This scent is so entwined with childhood that it feels personal, yet paradoxically universal. It’s not simply a smell—it’s a story, a shared piece of cultural shorthand as universal as learning to colour within the lines (or deciding not to).
The legal odyssey
Crayola’s victory wasn’t inevitable. The USPTO doesn’t hand out registrations for scent trade marks like participation trophies. The hurdles are steep, requiring proof of distinctiveness, non-functionality, and cultural resonance. Scent, after all, is ephemeral—it doesn’t leave a tangible mark like a logo or a tagline. And while Crayola’s smell had been enchanting children and parents alike for decades, proving its uniqueness in the legal sense was a different challenge altogether.
In 2018, when Crayola first filed its application to register the scent of its crayons, the USPTO rejected it outright, deeming the smell insufficiently distinctive. To the Office, it seemed merely a smell—pleasant, familiar, but too common, too unexceptional to stand alone as a brand identifier. But Crayola was undeterred. Its determination wasn’t just about defending a smell—it was about asserting that this particular smell belonged to it, as intrinsically as its bold colours and childlike joy. The company marshalled evidence: surveys of consumer recognition, testimony that no other crayon quite smelled the same, and marketing campaigns that subtly leaned into the crayon’s fragrance. Crayola, in a sense, argued that this scent had transcended the status of a mere feature of its product. It was a part of its story, woven through decades of experience, memory, and nostalgia.
Six years of legal wrangling later, in July 2024, Crayola’s persistence paid off: the USPTO granted the registration, marking the first scent trade mark approval in the US since Play-Doh secured registration of the distinct aroma of its toy modelling compounds. Not only was this a rare victory in the olfactory world, it was also a testament to the power of memory and emotion that scents can provoke. For Crayola, the smell of its crayons has never just been a marketing gimmick or an incidental byproduct of its product’s construction. It has been a part of its identity, the signature of a brand that shaped childhoods and experiences across generations.
It’s an unlikely hero in the fight for intellectual property: a smell that doesn’t even last long enough to fill a room, yet it lingers in the mind forever. For children who used Crayola crayons, the fragrance is woven into their memories, a marker of a time before the demands of adulthood came crashing in, before they knew that things could break or not work out. The smell is an experience. It takes us back to classrooms, to windowsill projects, to moments of childhood wonder. Crayola’s victory isn’t just legal—it’s the preservation of something deeply felt and long remembered.
More than wax
In the landscape of trade marks, Crayola’s success is a symbol of something much larger than crayons. It represents the evolution of intellectual property law—how the rules, once rigid and strict, are now beginning to allow for more nuanced expressions of brand identity. Crayola’s scent is not just a smell but a part of the cultural fabric, something we all share, a collective memory that has been transformed into an asset, legally protected. It stands as a beacon of how brands can push the boundaries of sensory marketing, staking claim not only on visuals or sounds but on something as ephemeral as a scent.
For brands that dare to think beyond the visual and auditory, the registration of a scent could well become a key pillar of their strategy. Crayola’s triumph may mark the beginning of a new era in sensory trade marks, where memories, emotions, and nostalgia hold legal weight.
For Australia, where no scent trade mark cases have yet been decided, the Crayola case may offer important insights into how courts and trade mark offices will approach this type of intellectual property. As brands continue to experiment with sensory marketing, the idea of securing legal rights to smells could become more prevalent, making the Crayola decision an important marker in the evolution of sensory branding and trade mark law.
In the years to come, it may be that scent is not just a rare and unique trade mark, but a cornerstone of brand strategy. Crayola’s smell could one day be as much a part of its identity as its colourful logo, signalling that sometimes the most powerful connections we have with brands don’t come from what we see or hear, but from what we smell.
[1] See J.T. McCarthy, Les grandes tendances de la léglisation sur les marques et sur la concurrence déloyale aux Etats-Unis d’Amérique dans les années 1970, La Propriété industrielle, Revue mensuelle de l’Organisations Mondiale de la Propriété Intellectuelle, No 10, October 1980, pp. 225 and 226
[2] Decision of the Second Appeal Board of 11 February 1999 in Case R 156/1998-2, application No 428.870. A short article appeared in OAMI News, No 3, 1999, p. 4, stating that notwithstanding the grant of trade mark No 428.870, the “smell of fresh cut grass”, future practice of the Office would be continue to demand a (two-dimensional) graphical representation of all non-verbal marks as a condition of application.
[3] UK Trade Mark Registration No. UK00002001416.
[4] UK Trade Mark Registration No. UK00002000234.
[5] By decision of 16 June 2000 confirmed on appeal by judgment of 19 December 2000, the Trade Marks Registry refused to register a mark consisting of the smell, aroma or essence of cinnamon for articles of furniture and parts and fittings thereof (Trade Mark No 2000169).
[6] The deposit (No 925.979) was effected by the French company Lancôme Parfums et Beauté & Cie. The Benelux Office for Intellectual Property has also allowed the smell of freshly-cut grass as a trade mark for tennis balls.
[7] Australian Trade Mark Registration Nos. 1241420 and 1858042.