Flavors aren't trademarks | Intellectual property and business law blog

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Steve O'Donnell, Ph.D. Registered Patent Attorney

Flavors aren't trademarks

I had a post about this general issue in one of my earlier blog iterations where I discussed my chili recipe and noted how recipes aren’t usually projectable by patents, trademarks, or copyrights...but that post was lost during the transfer to a new site. I still have the recipe so I might recreate that post later. It’s good chili.

Is a flavor profile a trademark?

A court in the Southern District of Texas (not exactly a place that comes to mind when talking about pizza) recently had a chance to rule on whether a pizza’s flavor can be trademarked (flip to page 10 for the trademark bit). Spoiler Alert: the answer is No.

Off the top of my head I can think of a few national pizza chains. Each is good, if you like pizza by committee, and sometimes that’s exactly what I’m looking for. Each also has certain unique “trademark” pizzas. For example, Little Caesars has a pretzel crust pizza (which scared me at first, but I like it, even if it is a bit salty), and Papa John’s has a few Frito-pie (walking taco) pizza (which I think I’ll try on Friday).

But, are those really Trademark pizzas? Could Little Caesar’s stop someone else from selling a pretzel crust pizza? Could Papa John’s stop someone from putting corn chips on a pizza?

Nope.

Trademarks let a consumer know the source of the goods they’re thinking about purchasing. If you see a Nike Swoosh on a shoe, you know it’s from Nike and that it has the quality you’ve come to expect from Nike. If you see a Coke can, you know the soda inside the can is of the same quality as other Cokes you’ve had. If that Coke is served to you in a plain cup at a party, you might recognize the taste, but at that point, you’ve already committed to the product so the taste isn’t influencing your decision. If, on the other hand, your host poured root beer into a Coke 2L bottle and served you that you should throw it in their face, because that’s not what you thought you were getting.

Similarly, if someone opens a Little Seesar’s Pizza, that’s a pretty clear trademark infringement because people might go there thinking they were really going to a Little Caesar’s; but if your local pizza place started offering a Frito-pie pizza that tasted just like Papa John’s Fritos Chili pizza that wouldn’t be a trademark infringement because you weren’t misled into buying the pizza thinking it was from Papa John’s.

In other words (and how Judge Costa framed it), the flavor of a dish is a characteristic of the dish and can’t be distinctive enough to be a trademark unless somehow the flavor’s significance becomes to identify the source of the product rather than the actual product itself. I have no idea how that could happen, but I can’t really explain why Dancing with the Stars is still on.

I’ll stop this post here, because it’s time for lunch. A pizza place opened a couple blocks away. They put American cheese on some of their speciality pizzas. It’s unusual, but kinda works. I guess that’s their trademark offering.