Can You Taste a Trademark?

There are 250 U.S. trademark registrations that can’t be seen.

  • Most are for trademarks you can hear.
  • Thirteen are for trademarks you can smell.
  • One extraordinary trademark can be experienced through touch.

How many registered trademarks can you experience by taste?

None. And it’s no accident. For something to function as a trademark, it has to be:

  • Non-functional; and
  • Not inherent to the goods.[1]

Imagine a stationery company trying to register a vanilla taste in the adhesive on its envelopes. First they’d have to prove the taste wasn’t added to mask the taste of the adhesive (non-functional). Then they’d have to prove the taste isn’t just how the adhesive happens to taste (not inherent). So far, no one has jumped that hurdle.

There have been nine applications for taste marks and each has been rejected:[2]

  • One for peppermint flavor for medical nitroglycerin
  • Six for beverages with different flavor combinations[3]
  • Two for orange flavor for anti-depressant tablets and pills

What’s it going to take before we have a taste mark? It’s going to need to be like the Play-Doh® smell mark. The taste will have to serve no function, not be inherent to the goods, and it’s going to need to be as well-known as the Play-Doh smell so the owner can show the taste is actually functioning as a trademark even though a consumer can’t experience the taste before purchase.

Shout out to Cassandra G. for the suggestion that led to this post.


[1] The U.S. Trademark Office Trademark Manual of Examination Procedure (TMEP) §1202.13 says this: “[I]t is unclear how a flavor could function as a source indicator because flavor or taste generally performs a utilitarian function . . .”

The same section of the TMEP also says: “[C]onsumers generally have no access to a product’s flavor or taste prior to purchase. Thus, an application to register a flavor ‘requires a substantial showing of acquired distinctiveness.’”

[2] Here’s a list of all the reasons the applications were rejected:

  • The taste or flavor performs a utilitarian function;
  • The taste or flavor can’t function as a source indicator because consumers have no access to a product’s flavor or taste prior to purchase;
  • The taste or flavor failed to function as a trademark.

[3]

  • Lavender, mint, lemon grass, and thyme
  • Lemon grass, mint, and vanilla
  • Jasmine and vanilla
  • Ginger and lemon peel
  • Cloves, cardamom, and cinnamon
  • Cinnamon and orange peel

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