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Trademarks are used by their owners to identify and distinguish their products or services from those of another. Brands are identified. We are familiar with trademarks consisting of letters, numbers, images, or a combination of all three, but trademark law has consistently been found to cover anything that can have any meaning and can be used as an identifier for the owner of a trademark. a registered trademark. good or services.
In addition to familiar words and designs, trademarks have been registered or applications have been filed for sounds, aromas, flavors, product shapes, textures, light, hand gestures, and movement marks online. However, these “non-traditional” trademarks often have a much more difficult time meeting the strict criteria of the Trademark Office and passing a series of standard trademark tests. Flavor trademarks, in particular, pose a challenge to the United States Patent and Trademark Office (USPTO).
Most flavor trademark applications are rejected on the grounds that they fall short of the functionality doctrine expressly provided for in the Lanham Act. The Law establishes that an application for registration may be denied if the mark in question is merely functional. A product feature is functional and may not serve as a trademark if it is essential to the use or purpose of the item or affects the cost or quality of the item. When it comes to the taste of food, drink, or some other edible item, for example, it would be difficult to convincingly argue that taste is not relevant. The flavor will be almost continuously functional.
There are even more hurdles to overcome for flavor trademarks. One hurdle is determining whether the proposed flavor can leave such a lasting impression as to elicit a reaction from the consumer, like the Starbucks logo that immediately evokes the idea of coffee. Companies can spend a lot of time and money establishing the flavor of their brand, but it all depends on the consumer. If the flavor is not distinguishable or does not resonate with the public, you will not have a chance of obtaining a federal trademark registration.
There is also the argument that trademarking of flavors may inhibit competition within the field. For example, it would be unfair to competitors in the candy market if a company registered a flavor trademark for the cherry flavor used in candy. If companies were constantly accused of violations, they would be hesitant to expand flavor and impede innovation within our food supply, which, to many, would be a very sad thing.