In May 2018, multinational toy giant Hasbro trademarked the smell of Play-Doh. Granted as a trademark for “toy modeling compounds” in the United States, Registration No. 87335817 describes the mark as “the scent of a sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough.”Footnote 1 According to the company, Play-Doh’s “iconic smell” is “one of the best-loved and most widely-known scents among consumers”Footnote 2—and, after sixty-two years of use, Hasbro can now claim rights to its smell. Play-Doh’s smell joins the handful of other trademarks perfuming the American marketplace, including cherry scented race car fuel,Footnote 3 the smell of bubble gum for sandals,Footnote 4 and “the scent of a pina colada” for ukuleles.Footnote 5
If the idea of owning rights to the smell of Play-Doh or bubble-gum scented flip flops seems odd, consider the ways in which “sensory marks”—including sound, fragrance, colour, touch and taste—extend beyond the sense of smell. Tarzan’s famous yell, for example, is registered as a trademark for toy action figuresFootnote 6 while another holler—the YAHOO yodel—designates online computer services.Footnote 7 T-Mobile owns the rights to magenta in the field of telecommunication service,Footnote 8 United Parcel Service owns brown in association with delivery services,Footnote 9 and Tiffany & Co. famously governs its “robin’s egg blue” for jewellery boxes and bags.Footnote 10 In the world of wine, a “sensory touch mark” exists for “a leather texture wrapping” on wine bottles,Footnote 11 and in the category of bakery goods, Cinnabon Inc. has registered the “cylindrical configuration” of its cinnamon bun (complete with melted frosting).Footnote 12 Even taste remains in the sightlines of aspiring mark holders, as per the case of the Texas-based pizza chain that tried—unsuccessfully—to claim “protected trademark interest in…the flavor of its products” (New York Pizzeria, Inc. v. Ravinder Syal, et al. 2014, 10) and filed a “flavor infringement” claim against a competitor (14).
Sensory trademarks present a compelling case in which to explore the senses as “containers of possibility” (Peters Reference Peters2015), and this article explores the emergence and logic of sensory trademarks from a legal and marketers’ perspective, identifying some key resonances and points of disconnect between these two perspectives. Using sensory trademark cases from the United States, I suggest that the current socio-legal environment opens a conversation about what I would call sensory capitalism—the monetization of the senses—that depends on intellectual property law to function effectively. Sensory capitalism captures a move towards treating the sensory components of products (or product marketing) as monetizable assets, in which consumers should be educated to make the “right” interpretation of particular sense experiences. I argue that the sensory model espoused by the trademarking of the senses is one of the mass sensorium, whereby the “audience” universally recognizes marks as designating a particular source or origin of goods. The mass sensorium offers something quite novel, however, because embedded in it is the (corporate) promise of a lingua franca that valorizes all of the senses and generates a type of mediated affect that is shared. But first, let’s examine how sensory trademarks emerged in the United States and Canada, and the legal and marketing rationale for this turn to the sensory.
The Legality and Logic of Sensory Trademarks
The 1946 US Lanham Act—the United States’ first uniform federal trademark law—defines a trademark as “any word, name, symbol, or device, or any combination thereof used … to identify and distinguish” goods in the marketplace and “to indicate the source of the goods, even if that source is unknown” (15 USC, 1127). For instance, the word Cadbury is a registered trademark, as are Nike, Disney, and Pepsi. Logos such as the Nike swoosh, Lacoste crocodile, and McDonald’s Golden arches, as well as phrases (e.g., McDonald’s “I’m Lovin’ It”) also function to indicate the origin of goods or services. Even though the Lanham Act is over seventy years old, its all-inclusive language continues to set precedents for what is considered to “identify or distinguish” specific goods in the United States (15 USC, 1127). Provisions of the Act, for example, have allowed for the trademark registration of the sound of NBC’s three chimes (1950), the shape of the Coca-Cola bottle (1977), and the scent of plumeria blossoms on sewing thread (1990). And in a watershed case in 1995 (Qualitex Co. v. Jacobson Products Co., Inc.), the US Supreme Court relied on the Lanham Act to rule that colour per se—colour alone—could function as a trademark, provided that it passes the key trademark “tests”: namely, the colour mark must not be functional (i.e., it must not be essential to the use or purpose of the article, or affect its cost or quality); the colour must be inherently distinctive; and the colour must contain secondary meaning (i.e., it must create a “mental association in buyers’ minds between the alleged mark and a single source of the product”) (McCarthy, as cited in Kearns Reference Kearns1996, 340n18). Justice Breyer, writing for the Supreme Court, observed that the language of Lanham Act “describes the universe of things that can qualify as a trademark in the broadest of terms” (Qualitex Co. v. Jacobson Prods. Co. 1995, 162). Drawing attention to the definition of trademark as any “word, name, symbol or device,” he noted that a “symbol” or “device” is “almost anything at all that is capable of carrying meaning”—including a colour (162).
Note that in US trademark law, sensory marks are implicitly sanctioned. The senses are not written into the Lanham Act; rather, it is the language and intent of the Act that permits sounds, shapes, colours, and scents to function as trademarks (172). As Justice Breyer pointed out, aside from the exceptions cited in the Act, the statute’s wording suggests that “[n]o trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration” (173). As one trademark lawyer succinctly claimed: when it comes to trademarks, “the sky’s the limit” (Stockell and Lyapis Reference Stockell and Lyapis2017).
North of the US border, legal developments in Canada also reveal this “sky high” thinking when it comes to sensory marks. Here, the intensification of attention to sensory mark is signalled by (among other things) an increasing normalization and recognition of non-traditional marks in legal interpretation and by statute. Historically, the registrability of non-traditional marks has been “contentious” in Canadian trademark law because they are not explicitly contemplated in the Trade-Marks Act (McGinnis Reference McGinnis2005, 119). While Canada’s Trade-Marks Act deliberately did not define “mark” in order to avoid a restrictive interpretation (121), a mark has been “interpreted narrowly in Canadian jurisprudence” (120). The upshot was that a visual requirement was “imposed” on the trademark registration, creating a barrier to trademarking marks that cannot be visually represented, like sound (120), smell (Mackie Reference Mackie2005, 428), or colour (Stevenson Reference Stevenson2015). Despite this barrier, positive rulings over sensory elements emerged. In 1989, one sound mark registration was granted, even though subsequent applications were denied on the grounds that sound was not a valid trademark (McGinnis Reference McGinnis2005, 117). Ten years later, the Federal Court of Canada ruled that colour alone was registrable (Simpson Strong-Tie Company, Inc. v. Peak Innovations Inc., 2009), relying on a previous ruling that green, when applied to the exterior of a pharmaceutical tablet, was a valid trademark (Smith Kline & French Canada Ltd v. Canada Registrar of Trademarks, 1987).
The vexed state of sensory trademarks in Canada was remedied in December 2014, when the Canadian Parliament enacted the Combating Counterfeit Products Act (CCPA), an omnibus bill that—while explicitly about stemming the tide of counterfeit goods—also expanded the scope of registrable trademarks. The CCPA redefines a trademark by replacing the word “marks” with the word “signs or combination of signs” under Section 2 of the Trade-Marks Act (CCPA 2014, 63). This redefinition entails a shift from understanding the trademark as a mark used for distinguishing goods and services to a sign used to distinguish those goods and services. More significantly, a “sign” is defined as including a colour, a sound, a scent, a taste, and a texture. The senses, in short, are explicitly tagged as suitable trademarks, and written into the language of the Act.
The success of sensory marks in Canada is too new to evaluate.Footnote 13 However, these developments in Canada illustrate the intensification of attention to the senses by and in law.
As might be expected, proponents from the more sensorially (trade-)marked United States and elsewhere suggest that sense marks are an innovative strategy for companies to expand their branding and to stand out in a competitive marketplace. Legal analyses and trademark lawyers frame these non-traditional marks as “outside the box” thinking (Stockell and Lyapis Reference Stockell and Lyapis2017) or as opportunities for businesses to “stir the imagination” while “enlarging their trademark portfolios” (Gilson and Gilson LaLonde Reference Gilson and Gilson LaLonde2005, 820). Some laud non-traditional trademarks as one of the “new, nonlinear ways to grab consumer attention” (Donahue Reference Donahue2014a). Others root their appeal in the increasing sophistication of consumers (McGinnis Reference McGinnis2005, 147) or affirm the need to “protect non-traditional trademarks in the interest of global trade” (Lukose Reference Lukose2015, 214). Arguably, the emergence of sensory marks might be linked to what Beebe (Reference Beebe2010) calls a post-rarity society—one in which mimetic technology makes it increasingly difficult to “produce distinctions” (815). Beebe suggests that intellectual property law “is the one area of law (outside of prohibitions against fraud) that is capable of protecting forms of distinction from imitation and overproduction” (815). That is, while we have the technological capacity to imitate goods, intellectual property law prevents them from being legally imitated. In a post-rarity society, Beebe argues, intellectual properties “are the most stable … forms of rarity that we have left” (815–16). And, if we consider the legal and lawyerly arguments for non-traditional trademarks, they suggest that these sensory marks offer an extra-ordinary level of distinction for businesses competing in a post-rarity society.
Marketing the Sensory
The increasing legal recognition of the senses has been surpassed by its marketing recognition—specifically, the marketers and marketing literature that position sensory elements as the solution to the problem of communicative abundance. In BrandSense: Build Powerful Brands through Touch, Taste, Smell, Sight, and Sound (2005), marketing guru Martin Lindstrom presents the senses as tools to exploit in the quest to create a powerful emotional attachment to commercial goods. Lindstrom entreats business owners to conduct a sensory audit on their brands, with an eye to leveraging all sensory touch-points (67–101). Businesses should strive to move from two-dimensional (2-D) to 5-D branding, Lindstrom counsels, because building on more senses will create “the ultimate bond between the consumer and the brand” (5). Lindstrom’s subsequent work bolsters this thesis with neuromarketing studies. Buy-ology: Truth and lies about why we buy instructs on “selling to our senses” (141) and pitches “Sensory Branding™” as the means of capturing consumer attention in a “visually overstimulated” world (142–43).
Although much hyped, Lindstrom’s work does not stand alone. Sensory marketing literature is increasingly common (see Hultén, Broweus, and van Dijk Reference Hultén, Broweus and Dijk2009; Hultén Reference Hultén2010; Krishna Reference Krishna2013; Krishna, Cian, and Sokolova Reference Krishna, Cian and Sokolova2016; Géci, Nagyová and Rybanská Reference Géci, Nagyová and Rybanská2017; Wardlaw Reference Wardlaw2017). It builds on earlier work on experiential marketing (Schmitt Reference Schmitt1999) and experiential consumption (Holbrook and Hirschman Reference Holbrook and Hirschman1982), which suggests that sensory impressions are the pathway to consumer impact. As Wardlaw (Reference Wardlaw2017) explains, with a “sensory-led approach to brand, pack and product development” and a “seamless consumer experience across all touchpoints … the whole is greater than the sum of its parts” (54). But is this accurate? There is a disconnect, I suggest, between the characterization of and enthusiasm for the sensory in the marketing literature and its legal treatment and expression, historically and today. It is this disconnect to which we now turn.
The “Sense Experts” and the Sensory (Marketing/Legal) Disconnect
In “How Capitalism Came to its Senses—and Yours: The invention of sensory marketing,” David Howes (Reference Howes2017) examines how advocates of sensory marketing such as Lindstrom (Reference Lindstrom2005), Krishna (Reference Krishna2013) and others consistently stress the “newness of their approach” (Howes Reference Howes2017, 2; see also Howes Reference Howes and Howes2005, 290–93).Footnote 14 These “sense experts” (Howes Reference Howes2017, 2) distinguish their privileging of smell, taste, touch, and sound from earlier eras of product marketing, claiming to herald a “new epoch” where the senses will dominate marketing strategies (2–5). Howes reveals these “newness” claims to be specious. A focus on presentation and pleasing the senses as a sales strategy, Howes argues, reaches back to the 1850s and the birth of the first department store, which offered visual and tactile displays to entice customers (4; also see Howes Reference Howes and Howes2005, 284–90; Howes Reference Howes2003, 208–12). Moreover, much like Lindstrom’s call to 5-D branding in the early twenty-first century, early consumer capitalism turned to “multiplying the sensory bases of product differentiation,” with the development of Coca-Cola’s “contour bottle” in 1916 (touch) and General Mills’ first jingle in 1926 (sound) (Howes Reference Howes2017, 5–6). With the marketing of the contour bottle dating back over a century and the promotional jingle, ninety-three years, sensory marketing is certainly not new. Sensory marketing in history is also not accidental, as Aradhna Krishna argues in her book, Customer Sense: How the 5 Senses Influence Buying Behavior (2013). Here Krishna claims that, historically, companies may have “unknowingly manipulate[d]” sensory attributes, but lacked awareness that they were doing so (4). This claim is patently false. As will be illustrated presently, businesses have long sought to claim trademark rights to sensory aspects of their products, demonstrating keen awareness of the power of colour, smell, and sound.
If the sense experts’ claims to the “newness” of sensory marketing are problematic, so too are legal experts’ claims about the “newness” of business interest in sensory marks. Recall that “legal experts” who favour non-traditional trademarks affirm that these marks represent “outside the box” thinking (Stockell and Lyapis Reference Stockell and Lyapis2017) and a “new” response to our present consumer attitudes and cultural conditions (see McGinnis Reference McGinnis2005; Donahue Reference Donahue2014a; Lukose Reference Lukose2015; Setyawan Reference Setyawan2017). However, attempts to “own” sensory marks are not new.Footnote 15 American business attempts to claim rights to colour, for example, reach back to 1906, when Leschen & Sons Rope Co. requested protection for blue woven into wire ropeFootnote 16 and Diamond Match Co. sought the exclusive use of red on match heads.Footnote 17 In 1949, Campbell Soup sought to monopolize red and white for its soup labels; in 1950, Life Savers requested protection of a “colored striped background” for candy wrappers;Footnote 18 and in 1960, Tas-T-Nut claimed “propriety rights” to certain colours on packaged nuts.Footnote 19 All of these cases were denied registration on the basis that colour could not be owned. As Justice Brown opined in the 1906 Leschen & Sons case, it is impossible to register a mark “of which the only distinction is the use of a color, because practically, under the terms of the act, that would give you a monopoly on all of the colors of the rainbow.”Footnote 20 Similarly, the 1949 Campbell Soup ruling affirmed:
What the plaintiffs are really asking for, then, is a right to the exclusive use of labels which are half red and half white for food products. If they may thus monopolize red in all of its shades the next manufacturer may monopolize orange in all its shades and the next yellow in the same way. Obviously, the list of colors will soon run out.
That a man cannot acquire a trade-mark by color alone has been stated a good many times in decisions and textbooks (Campbell Soup Co. v. Armour & Co. 1949, para 8–9).
Numerous other attempts to register colour trademarks exist: suffice to it say that the longstanding preoccupation with trademarking colours—and particularly the “good many times” legal decisions rejected these trademarks—reveals that, far from being a present-day brainwave, such “outside the box” thinking characterized business owners well over a century ago. In a similar vein, NBC applied to register the first US sound mark on November 20, 1947, claiming its “service mark” was created and first used in the “sale or advertising of services and the services rendered in commerce”Footnote 21 in November 1927. NBC’s sound trademark was granted in April 1950. Forty years later, smell also received trademark protection, when an appeal before the US Patent and Trademark Office Trial and Appeal Board (TTAB) found “no inherent bar” to registering an arbitrary, non-functional scent or fragrance—in particular the scent of plumeria blossoms on sewing thread.Footnote 22 Simply put, just as sensory marketing is not new, neither are attempts to trademark the sensory.
Even though the marketing and legal “sense experts” align in overstating the newness of the sensory in commerce, a marked disconnect exists between the marketing recommendations and the legal reality. As stated earlier, marketing “sense experts” advocate for a “seamless consumer experience across all touchpoints” (Wardlaw Reference Wardlaw2017, 54), proclaiming that 5-D branding trumps 2-D branding when it comes to creating a bond between consumers and a brand (Lindstrom Reference Lindstrom2005, 67–69). The more senses, the better. Marketers even create a hierarchy of the senses according to each sense’s ability to override rational decision-making and to create an emotional attachment to brands. “Smell, taste, and touch are the senses most in vogue in the current sensory marketing literature” (Howes Reference Howes2017, 10), and Lindstrom devotes much of his chapter on “Selling to Our Senses” to unpacking how the right smell—the allegedly most powerful sense—can “seduce” consumers to the benefit of brands (Lindstrom Reference Lindstrom2008, 144). As Lindstrom reports, with “our other senses, you think before you respond, but with scent your brain responds before you think” (2008, 147).
But if 5-D branding is the aim of marketing “sense experts,” it certainly is not the reality at the trademark office. Sensory trademarks are not easily obtained: they must be non-functionalFootnote 23 and they also require that businesses provide substantial evidence of secondary meaning (i.e., that consumers identify the mark as an indication of source). Despite the marketers’ exuberance for multiple sensory touch-points, I cannot find one case where a brand has registered a smell and a taste mark or a colour and a touch mark, much less a smell, colour, taste and touch mark—indeed, 5-D trademarked brands certainly seem a long way off. And the sensory trademarks that are registered create a different hierarchy: sound marks are the most prevalent while only a handful of smell marks exist. Smell has been deemed “nearly impossible to register,” and attempts to register taste marks have failed: at the USPTO, nine flavour applications have been filed, but all of them have been abandoned (Stockell and Lyapis Reference Stockell and Lyapis2017, 14). And the 2014 “flavour infringement” case brought by New York Pizzeria Inc. against a rival was ridiculed by the judge as “plainly half-baked” (New York Pizzeria Inc. v. Ravinder Syal, et al. 2014, 14).
Containers of Possibility and Sensory Capitalism (Or, Media and Monetization)
Thus far, I have traced the increasing legal acknowledgement of sensory trademarks, as well as the legal and marketing rationale for these marks. Although the law’s reasoning and requirement for sensory registration pivots on the growing recognition that colour, taste, sound, smell, and touch can, in fact, communicate the source of goods to consumers, in many respects, justifications for the need for sensory marks by both legal and marketing “sense experts” are the same: namely, consumers are bombarded by commercial messages, and sensory marks stand out.Footnote 24 Neither the marketing of the senses nor attempts to sequester them are new, but there is something new about the way that sensory marks function and can be understood in our present timeframe. In this section, I suggest that there is value in understanding the senses as media and in light of monetization, because it underscores elements of a sensory model unique to our particular cultural moment.
Containers of Possibility (The Senses as Media)
In The Marvelous Clouds: Towards a Philosophy of Elemental Media (2015), communication scholar John Durham Peters argues for a new understanding of media, as “containers of possibility” that are both natural and cultural (2). Media, he suggests, are not simply “the means by which meaning is communicated” (such as newspapers, radio, television, and the Internet) but also “sit atop layers of more fundamental media that have meaning but do not speak” (2). For Peters, these fundamental media include the elements, such as water, fire, sky, earth, and ether, which do not exist in pure form but are, instead, “drenched with human manipulation” (2). Without question, the senses equally qualify as fundamental media. They are basic human elements that are often taken for granted, and exist as “an ensemble of the natural and human craft” (9).Footnote 25 Sensory trademarks embody one instance of that ensemble, with the law, businesses and marketers functioning as brokers and intermediaries for particular sensory meanings. Recall Justice Breyer’s reading of the US Lanham Act and its definition of trademark as any “word, name, symbol or device.” Justice Breyer emphasized that a “symbol” or “device” is “almost anything at all that is capable of carrying meaning” (Qualitex Co. v. Jacobson Products Co. 1995, 162)—an observation remarkably like Peters’ understanding of media as “containers of possibility” that also function to “communicate meaning” (Peters Reference Peters2015, 2).
Such “containers of possibility” are channelled in very precise directions when it comes to sensory trademarks. The trademarked smell of Play-Doh, recall, comprises “the scent of a sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough”Footnote 26: it is difficult to imagine a more precise description of the smell of a toy modeling compound. Understanding the senses as media, as ensembles of the natural and human craft, proves useful here because it encourages consideration of the layered reality of sensory trademarks—particular sensory experiences are contextualized, channelled and “taught” to the public, so as to link particular sensations with precise, albeit artificially constructed, origins. In marketing and legal circles, this is known as “look-for advertising” (Stockell and Lyapis Reference Stockell and Lyapis2017, 36; Donahue Reference Donahue2014b, para 14), promotion that uses the sensory mark in question and also teaches consumers to look for it as an indicator of source. As such, Deutsche Telekom AG Co. subsidiary T-Mobile, which owns trademark rights to magenta for its wireless telecommunication services, was able to ban a competitor from using a shade of purple in its marketing and branding efforts. Central to its favourable ruling was the billions of dollars T-Mobile spent on “look-for advertising,” which not only included the magenta tinting all of its advertisements, but also embraced T-Mobile’s sponsored promotional events, such as “Vote Magenta” on Election Day, “Magenta Saturday” before Black Friday, and rolling out a magenta carpet at the 2011 NBA All-Star game (Donahue Reference Donahue2014b). Similarly, in what might be better described as “smell-for advertising,” in its quest to register Play-Doh’s scent mark, Hasbro specifically drew attention to its $220 million in advertising expenditures globally since 2004, and to the $77 million paid promoting Play-Doh to US consumers between 2004 and 2016 (Hasbro, Inc. Reference Hasbro2017, 6). Hasbro noted that “all Play-Doh modeling compound sold in the United States bears the same scent, so that all advertising of the product in the United States necessarily promotes the scented compound” (9). Asserting that “its unique scent is exclusive within the marketplace” (4), the company also made reference to the many promotional campaigns featuring the scent over the years, including the 2012–2013 Stop and Smell the Play-Doh campaign (9).
Sensory Capitalism
The multi-million or multi-billion dollar price tags in these “look-for” advertising examples bring us to a key argument about sensory trademarks as media/containers of possibility; namely, that they need to be understood in terms of monetization and what I would call sensory capitalism. While critical scholars often decry the ever-expanding vista of intellectual property as a problem of propertization (see Rose Reference Rose2003; Elliott Reference Elliott2003; Moore Reference Moore2003; Lessig Reference Lessig2005, 116–73; Beebe Reference Beebe2010), I suggest that monetization reorients the focus in important ways. But before discussing this element of sensory capitalism, it seems necessary to acknowledge—albeit in an acutely limited fashion—the variety of “capitalisms” emerging in critical and popular scholarship in order to better situate sensory capitalism. There are the standard late capitalism, post-capitalism, welfare capitalism and global capitalism, but also, and more recently, informational capitalism (Castells Reference Castells2000; Fuchs Reference Fuchs2010), digital capitalism (Mosco Reference Mosco2009, Reference Mosco2018; Betancourt Reference Betancourt2010), cognitive capitalism (Moulier Boutang Reference Moulier Boutang and Emery2011), affect capitalism (Arvidsson and Colleoni Reference Arvidsson and Colleoni2012; Massumi Reference Massumi2015), surveillance capitalism (Zuboff Reference Zuboff2015), and platform capitalism (Srnicek Reference Srnicek2017).Footnote 27 All of these recently coined “capitalisms” share common themes, including how capitalism has changed in a post-industrial economy (and its implications for the capitalist mode of production) and how knowledge/information/data have emerged as principal resources to be extracted, processed and sold for profit. Significantly, all of these “capitalisms” track elements of monetization,Footnote 28 be it the monetization of user-generated content on social media platforms (Fuchs Reference Fuchs2010), the monetization of affect (or affective investments) in brand building and financial markets (Arvidsson and Colleoni Reference Arvidsson and Colleoni2012)Footnote 29 or the commodified digital infrastructures that connect groups in platform capitalism (Srnicek Reference Srnicek2017). As Shoshana Zuboff (Reference Zuboff2015) explains of surveillance capitalism, reality itself becomes “subjugated to commodification and monetization and reborn as behavior” (85). The upshot of this is, for her, a world of the Big Other, “a ubiquitous networked institutional regime that records, modifies, and commodifies everyday experience from toasters to bodies, communication to thought, all with a view to establishing new pathways to monetization and profit” (81).
Scholars of these recent “capitalisms” often emphasize that they are capturing something “new.”Footnote 30 However, I view sensory capitalism far more modestly (and recognize that it can exist as a subset of informational or affect capitalism). Sensory capitalism is here used to draw attention to the ways that the senses have become enmeshed in the broader process of monetization, and have also become monetized within a framework that recognizes the role of intellectual property as key. Stated differently, in sensory capitalism certain sensory experiences become reframed as monetizable assets and entangled in the system of intellectual property. I suggest there are three components of sensory capitalism to consider here—the senses/sensory experiences, monetization, and intellectual property—and each will be dealt with in turn.
First, the senses. I have argued, thus far, that (in sensory capitalism) specific senses and sensory experiences are treated as elemental media to be assembled into brand assets and source indicators. “Look for advertising” functions solely to train or educate consumers on how to “properly” decode particular sensory experiences. In cases where attempts to register a sensory element fail, such as General Mills’s nearly two-year quest to trademark Cheerios’ yellow box, the rejection typically pivots on the fact that consumers’ senses were not trained as desired. As the Trademark Trial and Appeal Board ruled in its 2017 rejection of General Mills’s trademark, yellow on a cereal box had not acquired enough distinctiveness in the eyes of consumers. Consumers were more likely to see yellow as “eye-catching ornamentation” than “an indicator of unique source” (Donahue Reference Donahue2017). Consumers, in short, did not see yellow and ‘think’ Cheerios or Cheerios by General Mills.
Monetization comprises the second component of sensory capitalism. As detailed in the section on the Sense Experts (see above), monetization implicitly underpins the current focus of marketing and legal “sense experts” on sensory branding. Of course, monetization can explicitly drive this focus as well. As New York–based law firm Hilfer Law affirms, marketers should consider the senses “to develop their intellectual property portfolios” for one core reason: “the power of the senses can translate into monetizable assets in the form of trademarks if a brand thinks proactively and creatively” (Hilfer Law Reference Hilfer2013). These assets are understood not only in terms of driving sales, such as the one billion dollars in revenue Hasbro earned from US sales of Play-Doh between 2004 and 2016 (Hasbro, Inc. Reference Hasbro2017, 6), but also in terms of the ability to engage and attract followers/customers. For instance, the smell of Play Doh—something that was once simply part of the product but is now protected as an asset in its own right—arguably factors in what Arvidsson and Colleoni (Reference Arvidsson and Colleoni2012) call “affective investments,” a term used to capture the feelings and moods of an act or a statement (or toward a brand), which then “acquire a public presence” via social media and the ubiquitous “blogs, tweets, and … ‘social buttons’” characterizing contemporary society (144). Such affective investments are critical to the implicit valuation or “financial valuation” of the company because they contribute to the “perceived capacity of attracting future investments” (i.e., financial rent) (Arvidsson and Colleoni Reference Arvidsson and Colleoni2012, 144). Why does this apply to the smell of Play-Doh? As one of the largest publicly traded toy companies in the United States, Hasbro must constantly strive to attract shareholders. In its Response to Office ActionFootnote 31 for the Play-Doh scent mark, Hasbro specifically pointed to its 2,074,000 Facebook followers, 76,000 Instagram followers, and the 42,000 mentions of Play-Doh’s scent or smell made by “end users” on social media platforms between 2015 and 2017 (Hasbro, Inc. Reference Hasbro2017, 7). Hasbro further documented the positive and overwhelming recognition of scented Play-Doh by “the media and the general purchasing public” (7), its volumes of “unsolicited and favorable press coverage” (7), and its “nostalgic” impact on adult consumers (5), who not only associate the scent with childhood but also, through their long association with the product/smell combination, “expect that goods sold under that scent will be of the high level of quality consistent among Play-Doh products” (1). Establishing this positive public profile of Play-Doh’s smell—synonymous with childhood, no less—is one way Hasbro seeks to demonstrate affective investment in the brand.
Finally, intellectual property (IP) such as trademark law works to legitimate the sensory meanings granted and, importantly, to affirm this legal pathway as significant to our current sensory world. Intellectual property is central to understanding the current workings of capitalism, even though it tends to be overlooked (or given cursory or vague treatment) in current theorizations of capitalism (Zukerfeld Reference Zukerfeld2017). Zukerfeld (Reference Zukerfeld2017) makes a strong case for recognizing that “intellectual property institutions are no longer supporting actors, but protagonists in the capitalist theatre” (244). The centrality of IP can be witnessed in its expansion (in terms of laws, duration of protection, and what IP guards), “which now undergird almost all sectors of the economy” (255). This IP expansion, as we have seen, includes the recognition, endorsement, and policing of sensory marks.
Summing up the Sensorium®: Meaning and the Mass
This article has traced the legal, marketing, and business consideration of the senses, revealing a long history of sensory engagement between these players. Marketing experts and trademark lawyers who laud the (so-called) new, “out of the box” thinking when it comes to brand owners’ use of the senses fail to recognize that neither sensory marketing nor attempts to trademark sensory marks are new. What is new is the heightened recognition of the senses by the law,Footnote 32 alongside the need to consider the senses as media and in terms of monetization.
Shifting the focus to think of senses themselves as media allows us to view them as fundamental to our bodies but subject to brokers, intermediaries, and enforcers (in the form of businesses, marketers, and the law) that create and channel particular sensory meanings. Viewing the senses as media is particularly appropriate in the present climate because it captures scent, colour, sound, taste, and touch, as well as the promotional media used to establish the sensory meanings that businesses seek to trademark, and the social media and mainstream media relied upon to demonstrate and reinforce that trademark’s meaning, affective investments, and public presence. Moreover, I have argued that sensory capitalism captures a move towards treating the sensory components of products (or product marketing) as monetizable assets. Monetization, not propertization, I suggest, is the appropriate lens here and I would like to make clear why. Certainly, one could argue that monetization has always been an integral component of propertization: IP is typically sought as a way to monetize property-like assets. But the concept of propertization, in terms of its primary focus, is about creating boundaries and fences. Indeed, the literature critical of propertization highlights this, pointing to the problematic “enclosure of the commons” and chiding the “world of rapacious, state-aided ‘privatization’” created by expanding IP rights (Boyle Reference Boyle2003, 34). Such critiques focus on the dangers—to innovation, society, and the public good—of this enclosure and the various problems generated by creating boundaries and blocking “access” (Boyle Reference Boyle2003; also see Runge and Defrancesco Reference Runge and Defrancesco2006; Angell Reference Angell2008). In contrast, the concept of monetization places explicit attention on how IP can translate into monetizable assets. The conceptual focus is not on creating borders around intellectual “property” but rather on how one might exploit all possible elements of a brand/service to a financial end. Central to this is how a company’s financial investment in creating precise associations in the minds of consumers (through promotional campaigns, effective social media pick up, and so on) can be leveraged as affective investments that not only contribute to present day sales but, as detailed above, also contribute to the perceived ability of the company to attract investments in the future. With propertization, the discussion pivots on creating fences and barring access by competitors; with monetization the discussion is about communicating broadly and aiming for pick up (and redistribution of the corporate message) by consumers.
In many respects, the monetization of the senses in terms of sensory trademarks mirrors other arenas in our culture where personal data and aspects of our body are being monetized.Footnote 33 With sensory capitalism, however, collecting personal “data” or individual sense experiences is not the goal. Rather the intent is to establish a type of mass sensorium, whereby consumers universally associate a sensory mark with a particular source or origin of goods. Of course, the success of this pivots on training people to properly decode particular sense experiences, on taking an individual sensation and transforming it into a type of mediated affect that is shared. Or so the logic goes. Consider Play-Doh’s scent mark: according to Hasbro, the smell not only signals its Play-Doh products but also unites consumers in visions of childhood itself. Now that’s a grandiose vision for the scent of a toy modeling compound.
