By Micah Bradley

Do you love waking up to the smell of sizzling bacon? In 2014, Oscar Mayer held a sweepstakes for a device that could plug into an iPhone to emit the aroma of bacon as a morning alarm rang. Oscar Mayer received almost 150,000 applications for the few thousand diffusers, and the company even won “Most Creative Use of Technology” at the Shorty Awards for Social Media.

Though previous scent technologies had limited success, growing interest in aromatherapy products and in scent advertising for brick-and-mortar stores will likely lead to scent diffusion devices for smart phones, or even technological integration into phones themselves. These scents might be triggered by a user through apps for relaxation or by companies through scented advertisements or shopping websites. Some current ventures include oNotes, which connects to phones via Bluetooth and has Spotify-style scent playlists, and Scentee, which sells cartridges that emit scents from phones.

The rise of scent technology begs the question—can you trademark a scent? Though it is possible, reportedly only about ten scents had been trademarked as of three years ago. However, brands have shown an increasing interest in trademarking scents. For example, Verizon recently protected its stores’ “flowery musk scent.”

Trademarking scents is difficult. The scent must be both “nonfunctional and distinctive.” Ironically, in order to be considered nonfunctional, if the product’s only purpose is smell related (such as a perfume), instead of helping to distinguish a brand, it is not trademarkable. In addition, there can be difficulties in applying for the trademark, such as providing samples of the scent to a government examiner. As of now, Verizon would be able to puff out its protected “flowery musk scent” while other brands have no protection for scents they want consumers to associate with their brands.

Besides intellectual property, two other issues that may come with scent technology are tort and criminal claims. Texting obnoxious smells like farts could result in nuisance claims. Phones could also emit smoke or chemical smells, resulting in criminal or negligence charges.

These technologies are still emerging, and it may be several years before we see their full incorporation into phones or other devices. Clients should stay ahead of the curve, as Verizon has, and trademark their signature scents now.