Name of the author: Aditi Bansal (4th Year Law Student, OP Jindal Global University)
Introduction
Smell is one of the most memorable senses of a human. The sense of smell can open up lanes of memory, emotion and perception in the human brain. Humans are deeply connected to their emotions through their senses. This is quite well utilized in marketing, by using jingles and visuals to intrigue people towards the product. The sense of sound and vision has been incorporated in traditional marketing, but smell remains hard to incorporate. It is a stated fact that when people sell houses, they bake cookies because the smell of freshly baked cookies give humans a perception of childhood and comfort. Smell has the power to be used as an exceptional form of marketing as it not only is a form of experience rather also is a memory. Old perfumes also remind people of the memories from the times they were used. The power of smell or scent can be used for marketing in the most unusual ways one of which has been launched by McDonalds.
Marketing & McDonalds
McDonalds has been extremely innovative with its marketing. It has used visuals and smell sensory to their potential to create an advertisement which is not only innovative but also equally effective. For its 50th Anniversary, they launched a limited-edition collection of candles called the ‘quarter pounder scented candle pack’ which was available for 35 dollars on their website. This collection was a set of six candles which separately were scented with the ingredients of the quarter pounder which included the bun, ketchup, pickle, cheese, onion and obviously the beef. When all these candles were lighted up together, they synchronized to a delicious scent of a McDonald’s famous quarter pounder burger[1]. The smell of the Quarter Pounder Burger would no doubt signal the brains for an instant craving. Using such a candle at a public gathering would not only initiate talk but increase the sales of their burgers. But McDonalds did not stop at this, it went up a notch this time. Recently, McDonalds brought another striking idea of marketing into life, ‘Scented Billboard’[2]. These billboards have been placed at a standing level with no image or advertisement on it, not even a logo. The billboard is simply a plain red or a yellow color. With these minimal visuals of a solid color, the billboard itself is not simple. It is designed in a way to pump out the very known scent of fries. This scent would provoke a craving of fries among the people who would pass by the billboard and the next thing they would see is a McDonalds just a few meters away from the billboard. These billboards have been strategically placed near the McDonalds store, to drive people in through the scent. “Smell” or “Scent” is the new branding and marketing strategy of McDonalds which is effectively provoking a certain craving of fries. The marketing is top notch and has caught the eyes of the world.
Scent Marketing
The scent marketing is not only used by McDonalds but also Hyatt Hotels and Play-Doh. Hyatt Hotels use their signature scent in all their hotels which deliver a perception of calmness and elegance. The scent is very carefully chosen to indicate and remind people of their experience in the Hyatt Hotels. Having a signature scent helps them increase their brand memorability[3]. On the other hand, Play-Doh uses a sweet and slightly musky scent in its product which reminds people of their childhood. The scent holds memories which can be relived. Such memories get associated with the brand, which helps create a brand image[4]. But the question lies in whether “the smell” can be protected as intellectual property?
Can smell be protected?
Trademarking a smell is difficult and non-traditional. A few countries allow for such a trademark but on the other hand most of the countries don’t. Trademarking of a smell is based on a simple functionality doctrine. If the smell adds to the functionality of the product, it cannot be trademarked[5]. For example, a perfume’s functionality is based on a scent which is basically the essence of the product. Such a smell or a scent cannot be trademarked. However, the signature scent of the Hyatt hotels could be trademarked as they don’t add to the functionality of their hotels but rather just improve the experience and create a brand identity. The Hyatt Hotels were successful in creating a distinct fragrance for their brand called the ‘Hyatt Seamless’ or ‘Hyatt Zen’ which could only be related to their brand. Another issue which they managed to overcome was that they successfully described the smell in form of words to the trademark office, considering a signature scent was created it was easy to be represented. This challenge would become a hurdle for a company like McDonalds as their smell is in the food which is required to be replicated to form a scent in order to be trademarked. Countries like the US and the EU allows for smell trademarks but still they remain rare due to the extensive hurdles of the process. The United States has allowed for a scent of pulmeria blossom to be trademarked which is used in sewing threads and embroidery yarn[6]. The regulations in the EU were changed in 2017 and the requirement of a graphical representation was removed, but the regulations still do require a clear and precise representation. The UK has allowed to trademark the smell of beer which is used in darts[7]. The US and the EU have allowed for such trademarks but it’s quite rare and the process is excruciating.
Strategy or Coincidence?
Smell is not recognized internationally as a part of brand identity and therefore not all countries allow for such registrations. The proportion of countries which allow for a smell being trademarked is comparatively low and even further such registrations remain to be rare. This could change with the upcoming trends. McDonalds has managed to bring an innovative twist to the traditional advertising methods. They might even become a trend setter in the industry causing a wave to non-traditional scented billboards all around Being. Being the pioneers and the industry trend setters, McDonalds would not want to dilute themselves to be one of the companies using scented billboards. one of the most successfully set up chain round the world, McDonalds would have a plan. It cannot be a coincidence that the billboards are set up in two Dutch cities, Utrecht and Leiden. Being a part of the European union, these cities allow for smell protection. But this could have been any other European city or any American city. Netherlands is one of the fastest growing countries in the world with a stable political environment. Also at the same time, they are the largest receiver of foreign direct investment from the United States. With such a business climate, economic conditions and regulations, Netherlands has managed to be consistently ranked as the world’s most competitive industrialised economies[8]. McDonalds has previously stated that they are looking to make Utrecht their new top headquarters while looking for talent, accessibility and a dynamic location[9]. This combination of new talent, work force and economic consistency has already made Netherlands a top choice for McDonalds. Considering the IP regulations followed in the Netherlands allows for smell trademarks, it gives McDonalds another coincidence to follow through their plan. But these are too many good news to be a coincidence.
Recently in June 2024, McDonalds lost their battle against Supermac for their mark Big Mac within the EU. The judgement mentions that McDonalds failed to provide genuine use of the mark[10]. With this setback, the scented billboards might be a fresh way to draw back the attention and mark their superiority. There are too many possibilities and too many strategies. But one thing for sure is that McDonalds would not have launched such a huge and innovative campaign without something in the wraps.
Conclusion
McDonalds is an amazingly innovative and strategic company, especially in terms of marketing[11]. For years since they have been established, they have managed to be on the top of the charts. They have come with the most innovative ideas of advertising, but the “scented billboards” have to be taking the marketing standards up a notch. But even if McDonalds is planning to register the smell, it would be a long process of proving how its unique and different from all of its other competitors. McDonalds has a bunch of leveled competitors like Burger King, in and out which have a similar menu. The smell of the food would not be so different considering the ingredients are similar as well. Moreover, in order to get a registration, McDonalds would have to prove that smell is not the essence of the food which would completely negate the famous words of Joey (FRIENDS), “Half the taste is in the smell, you are sucking up all the taste units”.
[1] Mike Pomranz, ‘McDonald’s Scented Candle Set Smells Like a Quarter Pounder When Burned in Unison’ (Food & Wine, 21 February 2020) <https://www.foodandwine.com/news/mcdonalds-quarter-pounder-scented-candles >
[2] Hunter Schwarz, ‘McDonald’s scented billboard is a stroke of marketing genius’ (Fast Company, 12 April 2024) <https://www.fastcompany.com/91090407/mcdonalds-scented-billboard-is-a-stroke-of-marketing-genius >
[3] Laurence Minsky, Colleen Fahey, and Caroline Fabrigas, ‘Inside the Invisible but Influential World of Scent Branding’ (Harvard Business Review, 18 April 2018) <https://hbr.org/2018/04/inside-the-invisible-but-influential-world-of-scent-branding>
[4] ‘Can You Trademark a Scent? Play-Doh Proves You Can!’ (National Inventors Hall of Fame, 14 December 2022) <https://www.invent.org/blog/intellectual-property/trademark-scent>
[5] ‘Smell, Sound and Taste – Getting a Sense of Non-Traditional Marks’ (WIPO Magazine, February 2009) <https://www.wipo.int/wipo_magazine/en/2009/01/article_0003.html>
[6] Joshua Biletsky, ‘To Trademark a Smell’ (Biletskey Law) <https://biletskylaw.com/trademark-brands-scents/>
[7] ‘Smell, Sound and Taste – Getting a Sense of Non-Traditional Marks’ (WIPO Magazine, February 2009) <https://www.wipo.int/wipo_magazine/en/2009/01/article_0003.html>
[8] US Department of State, 2024 Investment Climate Statements: Netherlands <https://www.state.gov/reports/2024-investment-climate-statements/netherlands/>
[9] ‘Utrecht CS is new top location for hq offices as McDonald’s Netherlands moves to Central Park building’ Savills News (07 February 2020) <https://www.savills.com/insight-and-opinion/savills-news/295817/utrecht-cs-is-new-top-location-for-hq-offices-as-mcdonald-s-netherlands-zieht-in-den-zentralen-park-bau>
[10] Jim Chester, ‘McDonald’s Big Mac® EU Trademark Battle: A Comprehensive Analysis’ (Klemchuk, 11 June 2024) <https://www.klemchuk.com/ideate/mcdonalds-big-mac-trademark>
[11] Elissaveta M. Brandon, ‘Fast-food advertising is in its art school phase’ (Fast Company, 29 March 2023) <https://www.fastcompany.com/90872430/fast-food-advertising-is-in-its-art-school-phase>