Many food treasures and eating haunts are trying to get a trademark for their Flavour marks. If they are accepted, they join the list of non conventional trademarks like sound, smell, touch etc. The problem lies in the fact that the requisites for registration of traditional and non-conventional marks cannot be the same as both are incapable of graphical representation. Secondly, the flavours are subjective in nature, they change over time, besides being difficult to access.
Since functional aspects cannot be registered, flavour marks for food products can be registered only if it acquires secondary meaning. Even the identity of origin function of traditional trademarks is not served as the customer comes to know about the taste only after he buys it.
In a recent case, United States District Court rejected the contention of New York Pizzeria, Inc. that it receipes are being used at a rival restaurant which constitutes trademark infringement under the Lanham Act. The Court rejected it and held that that though Lanham Act encompasses “almost anything at all that is capable of carrying meaning” but that meaning entitles a mark to trademark protection only if it distinguishes and indicates the source of a product. Flavour marks may not be able to satisfactorily carry out this function. Thus, only when a flavour has acquired distinctiveness, or “secondary meaning” – that is, when customers have learned to associate the flavour with its source, that it has any chance of serving as a valid trademark.
-Shambhavi Mishra
Since functional aspects cannot be registered, flavour marks for food products can be registered only if it acquires secondary meaning. Even the identity of origin function of traditional trademarks is not served as the customer comes to know about the taste only after he buys it.
In a recent case, United States District Court rejected the contention of New York Pizzeria, Inc. that it receipes are being used at a rival restaurant which constitutes trademark infringement under the Lanham Act. The Court rejected it and held that that though Lanham Act encompasses “almost anything at all that is capable of carrying meaning” but that meaning entitles a mark to trademark protection only if it distinguishes and indicates the source of a product. Flavour marks may not be able to satisfactorily carry out this function. Thus, only when a flavour has acquired distinctiveness, or “secondary meaning” – that is, when customers have learned to associate the flavour with its source, that it has any chance of serving as a valid trademark.
-Shambhavi Mishra
