Nontraditional Trademarks: The Flavor of the Month

Recently, in a case of first impression, the Trademark Trial and Appeal Board refused to grant trademark protection to the flavor of an antidepressant tablet on the grounds that the flavor was functional and incapable of serving as a mark. <i>In re N.V. Organon</i>, 79 USPQ2d 1639 (TTAB 2006). The decision is a departure from the trend of extending protection to nontraditional trademarks. Although the Board left the door open to the possibility of registering flavor as a trademark, it made clear that future applicants will face significant challenges in registering such marks, including: 1) proving that a flavor has acquired secondary meaning; 2) overcoming the difficulties inherent in protecting a flavor due to the subjective nature of taste; and 3) proving that a flavor functions as a source indicator despite the fact that consumers are not exposed to a product's flavor prior to purchase.

26 minute read November 30, 2006 at 01:27 PM
By
Erik Kahn and Patricia Werner
Nontraditional Trademarks: The Flavor of the Month

Recently, in a case of first impression, the Trademark Trial and Appeal Board refused to grant trademark protection to the flavor of an antidepressant tablet on the grounds that the flavor was functional and incapable of serving as a mark.

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