Can you trade mark the taste of food?

I know that taste…

A US court has recently ruled, in the case of New York Pizzeria v Ravinder Syal that a restaurant couldn’t claim trade mark rights over the taste of one of its pizzas.

A ‘mark’ is entitled to trade mark protection only if it denotes the source of the product or service to which it is applied. The court said it is unlikely that flavours can ever be inherently distinctive because they do not automatically suggest a product source. Instead, flavour is generally seen as a characteristic of the goods.

A trade mark must not exclusively tell the consumer about the quality or characteristic of the product. A banana will, you would hope, taste like a banana, so you won’t see Dole registering its flavour. A taste trade mark would also need to avoid being a common flavour in relation to the particular product, even if it isn’t the product’s natural flavour. For instance, mint flavouring is often added to toothpaste. But what if you could make a baguette that tasted like gravy? Forgetting about whether anybody would buy it, could you register the flavour as a trade mark?

Another problem that you would need to overcome is the fact that consumers generally only taste the goods after they have purchased them. With that in mind, how can flavour perform the role of being a badge of origin? This would require a consumer to ‘buy blind’ and only discover the trade origin once the product was being consumed.

Some unusual trade marks have been accepted by the registries in the past. Examples include colours, sounds and smells; however a consumer can see a colour, smell a scent or hear a sound, without necessarily spoiling the product. As soon as something goes in your mouth, few people are going to want to buy it.

Finally, there is the problem of how you go about representing the flavour in order to obtain a trade mark. The law says that a trade mark must be a sign capable of being represented graphically. Flavours are very subjective and how would one go about committing it to a visual form? Colours have pantone numbers but tastes are a little more subjective.

So as it stands, it seems you are likely to struggle to get your taste registered, but who knows what the future may hold. Times change and who is to say that we won’t all be using toffee flavoured smartphones in 10 years’ time? If you want help applying to register your taste as a trade mark, contact Briffa.

Author: Josh Little