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Can You Trademark How a Food Tastes?

You may remember the advertising campaign for Coke Zero. The gag is that Coke Zero allegedly tasted so much like “real” Coke that one division of Coca-Cola threatened to sue another division for “taste infringement.” If you don’t recall the Coke Zero commercials, see an example and a 2007 New York Times article recapping the ad campaign.

Russo’s New York Pizzeria restaurant chain – which is from Texas, not New York – found Coke’s ads more inspiring than humorous. In a life-imitating-art moment, it sued a rival chain, Gina’s Italian Kitchen, for taste infringement. Russo’s claimed trademark rights in how its food tasted, and it said the rival chain copied that taste. Fortunately for the rival chain (and the Coke Zero division), a federal court found Russo’s claim “half-baked” (the judge’s words, not mine).
 
Typically, trademarks are words or logos associated with a marketplace offering, such as the Coca-Cola name or its swoosh logo. However, in limited circumstances, a product’s features (in addition to the product’s “brand”) also may be protected as trademarks when consumers view those features as signals of the product’s source. Given the expansive view of what’s potentially trademarkable, it’s not ridiculous to think that a food’s flavor could qualify for protection.
no matter how consumers view a product feature, the feature isn’t trademarkable when it is “functional” 
However, no matter how consumers view a product feature, the feature isn’t trademarkable when it is “functional,” i.e., “if it is essential to the use or purpose of the article or if it affects the cost or quality of the article.” In the case of food, flavor will almost always be functional. 
 
It’s a logical outcome for at least two reasons. First, imagine the competitive implications if we allowed trademark protection for flavors. The first food vendor to popularize a flavor would get the perpetual rights to prevent all others from replicating the flavor. In other words, the first baked ziti vendor could potentially prevent all others from offering baked ziti that tasted anything like the original. This would quickly stifle innovation in our food supply. Second, food vendors can still rely on trade secret law to protect recipes. Indeed, Coca-Cola has one of the most paradigmatic trade secrets of all time, its Coca-Cola formula. 
if rival food vendors can independently figure out how to make an identical flavor, trade secret law won’t stop them
The problem with trade secrets is that they don’t prevent reverse engineering. As a result, if rival food vendors can independently figure out how to make an identical flavor, trade secret law won’t stop them. 
 
Case citation: New York Pizzeria, Inc. v. Syal, 3:13-CV-335 (S.D. Tex. Oct. 20, 2014). I tested on taste infringement in my 2010 Intellectual Property Law exam. See my sample answer.
 
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*A version of this article was originally published by Forbes on Oct. 22, 2014.
legal,pop culture,Illuminate

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