Taste as a Trade Mark
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Abstract
The registration of tastes as Community Trade Marks became possible from 1 April, 1996. The Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM) began accepting applications for taste trademarks when EC Regulation 40/94 on the Community Trade Mark came into force.
The primary issue of this article is the discussion of whether the taste is capable of providing the essential function of a trademark. The basic criterion for identifying trademarks eligible for registration (and protection) is distinctiveness. A taste is a sign that has the potential to be included in the definition of a trademark according to the Directive and to the CTMR.
It should be noted that taste as a trademark can be applied only for goods but not for services. It comes from the nature of the taste itself: taste is initially stimulated by the contact of saliva, which dissolves or dilutes tasty molecules of food and transports them toward the taste receptors. Normally, the services cannot stimulate taste receptors.
The taste trademark is not immediately viewed as a trademark, in part because it has not been traditionally used as such. Consumers need to be conditioned to perceive the claimed taste as a source-identifying object: taste should help a consumer distinguish one brand of goods and services from that of another. The taste should be viewed by the consumer as a trademark, but not as a decorative or functional feature of goods. The main problem of the taste trademark is that it is typically perceived as simply as a functional feature of the goods. Taste is a different sort of a distinctive sign in the sense it is intrinsic to the product in question. Very often, taste will prove to be an essential component of the product it claims to distinguish. Tastes cannot normally be separated from the product they should distinguish and that makes some difficulty for consumers in gaining access to the mark. The taste of a product can only be appreciated once it is consumed. The article discusses if there is any point where the taste mark can be exhibited.
The article discusses Eli Lilly & Co.’s Community Trade Mark Application case. The application for an artificial strawberry flavour for use in pharmaceutical products was refused by the OHIM second board of appeals. An artificial strawberry flavour was found to be commonplace and devoid of a distinctive character in relation to pharmaceutical products. It was thought that consumers were likely to see the taste as a means to disguise the unpleasant flavour of medicine rather than as a trademark—in other words there was doubt over whether it functioned as an indication of origin.
The primary issue of this article is the discussion of whether the taste is capable of providing the essential function of a trademark. The basic criterion for identifying trademarks eligible for registration (and protection) is distinctiveness. A taste is a sign that has the potential to be included in the definition of a trademark according to the Directive and to the CTMR.
It should be noted that taste as a trademark can be applied only for goods but not for services. It comes from the nature of the taste itself: taste is initially stimulated by the contact of saliva, which dissolves or dilutes tasty molecules of food and transports them toward the taste receptors. Normally, the services cannot stimulate taste receptors.
The taste trademark is not immediately viewed as a trademark, in part because it has not been traditionally used as such. Consumers need to be conditioned to perceive the claimed taste as a source-identifying object: taste should help a consumer distinguish one brand of goods and services from that of another. The taste should be viewed by the consumer as a trademark, but not as a decorative or functional feature of goods. The main problem of the taste trademark is that it is typically perceived as simply as a functional feature of the goods. Taste is a different sort of a distinctive sign in the sense it is intrinsic to the product in question. Very often, taste will prove to be an essential component of the product it claims to distinguish. Tastes cannot normally be separated from the product they should distinguish and that makes some difficulty for consumers in gaining access to the mark. The taste of a product can only be appreciated once it is consumed. The article discusses if there is any point where the taste mark can be exhibited.
The article discusses Eli Lilly & Co.’s Community Trade Mark Application case. The application for an artificial strawberry flavour for use in pharmaceutical products was refused by the OHIM second board of appeals. An artificial strawberry flavour was found to be commonplace and devoid of a distinctive character in relation to pharmaceutical products. It was thought that consumers were likely to see the taste as a means to disguise the unpleasant flavour of medicine rather than as a trademark—in other words there was doubt over whether it functioned as an indication of origin.
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
