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Paul Zimmerman

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Jakub Gojda  ©

The Taste of Failure

New York Pizzeria, Inc., a Texas-based pizza chain, attempted to register a truly unconventional trademark: the taste of its pizza. Predictably, a U.S. District Court rejected the bid as “half-baked” concluding that taste is a “functional” element of the offered pizza product (i.e., the essential element of its use), and hence, cannot be monopolized through trademark protection. 

While this ruling is not terribly surprising, it is worth noting that other forms of nontraditional trademark protection are on the rise. For instance, in-store layouts and configurations that are recognizable to the public as a source-indicator for certain products have been protected. Recently, courts have also upheld registrations for specific usages of colors associated with well-recognized brands (think Tiffany’s little “blue” bags and T-Mobile’s magenta campaign). Therefore, while the unique taste of food is unlikely to be a strong candidate for trademark registration, a brand-owner may be able to protect its image through the registration of other non-functional, yet creative and unconventional marks that consumers readily associate with that owner’s particular brand and products. Business owners would be wise to scrutinize whether their branding unwittingly incorporates some protect-able elements.

This article is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.