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A Taste for Trademarks: Registering a Flavor With the United States Patent and Trademark Office

by Gary K Price

posted in Legal

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Trademarks are used by their owners to identify and distinguish their goods or services from those of another. Trademarks are identifiers. We are familiar with trademarks that consist of letters, numbers, pictures, or a combination of all three, but trademark law has consistently been found to cover anything that is capable of carrying some meaning and that can be used as an identifier for a trademark owner's good or services.
In addition to the known words and designs, trademarks have been registered or applications have been submitted for sounds, scents, flavors, product shapes, textures, light, hand gestures, and online motion marks. However, these "nontraditional" trademarks usually have a much tougher time of meeting with the Trademark Office's strict criteria and passing a series of standard trademark tests. Flavor trademarks, in particular, pose a challenge for the United States Patent and Trademark Office (USPTO).
Most flavor trademark applications are rejected due to failing to overcome the functionality doctrine expressly provided in the Lanham Act. The Act establishes that an application for registration may be refused if the trademark in question is merely functional. A product feature is functional and cannot serve as a trademark, if it is essential to the use or purpose of the article or if it affects the cost or quality of the article. When it comes to the flavor of food, drink, or some other edible item, for example, it would be difficult to convincingly argue that flavor is not relevant. Flavor will pretty much continually be functional.
There are even further hurdles for flavor trademarks to overcome. One hurdle is determining whether the proposed flavor can leave such a lasting impression as to evoke a reaction with the consumer, such as the Starbucks logo immediately bringing up the thought of coffee. Companies can spend a lot of time and money establishing their branded flavor, but it all depends upon the consumer. If the flavor isn't distinguishable or resonate with the public, it will have no chance of obtaining a federal trademark registration.
There is also the argument that trademarking flavors can inhibit competition within the field. For example, it would be unfair to competitors within the candy market if one company registered a flavor trademark for the cherry flavor used in candy. If companies were constantly being brought up on infringement charges, they would be hesitant to expand upon flavor, and impede innovation within our food supply, which, to many, would be a very sad thing indeed.
About the Author: Gary Price is an attorney registered to practice before the United States Patent and Trademark Office. His legal practice includes all areas of Intellectual Property. Mr. Price also provides federal registration services under the business name Trademark Connect. If your business wants to register its brand, then go to http://www.TrademarkConnect360.com and learn more about our registration services and our registration Guarantee.
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