In re Clarke

Celia Clarke's (plaintiff) business, Osewez, added a nonfunctional floral scent to its embroidery yarn and thread as a distinguishing feature, advertised the scent as part of its brand identity, and was the sole source of scented embroidery products in the market, with consumers, dealers, and distributors coming to recognize Osewez specifically because of this scent; the examining attorney rejected Clarke's trademark application, reasoning the scent did not function to identify or distinguish the product, and Clarke appealed.

Whether a scent added as a nonfunctional feature to a good may serve as a trademark if the producer has promoted the scent as a way to distinguish and identify the product.