Can a flavour be protected?
2018 was the year of non-traditional brands. Go to the sound trademark case filed by Zippo (which has obtained protection on the "click" of the lighter) and theThe Play-Doh case (the smell of registered modeling clay)The brand news was very busy. But what about taste? Is it possible to protect a flavour? Are there taste marks?
Flavours not protected by copyright
Copyright is an intellectual property right granted to the creators of original works. Copyright owners can defend their creations, including by attacking counterfeiters. There is no exhaustive list of protected works. But it generally protects literary, artistic and architectural works and even advertising creations.
On the other hand, fragrances and flavours are not protected by copyright. Indeed, they are not, French case law has long refused to recognize a copyright on fragrances. The Court of Cassation thus ruled that "the fragrance of a perfume, which is the result of the simple application of know-how, does not constitute the creation of a form of expression that can benefit from the protection of intellectual works by copyright". (Cass. Com., Dec. 10, 2013, n°11-19872).
Similarly, the ECJ has recently ruled that the flavour of a food product cannot be qualified as a work. The case concerned Dutch spreadable cheeses. In its judgment published on 13 November 2018, the Court dismissed the application for infringement. It justified its decision on the following grounds: "Unlike a book or a film, a flavour is essentially based on sensations and taste experiences that are subjective and variable. These depend, in particular, on factors related to the person tasting the product concerned, such as age, food preferences and consumption habits, as well as the environment or context in which the product is tasted. »
Get a trademark to protect a flavour?
To that question, the National Institute of Intellectual Property (INPI) answers "no". Indeed, according to the INPI, taste signs must, "like any other form of trademark, be represented graphically so that others can determine their purpose and extent. This condition is technically very difficult to meet and therefore does not allow a smell or taste to be protectable to date. »
However, there have been several unsuccessful attempts to register taste marks. For example, OHIM (formerly EUIPO) rejected a Community trade mark application by a pharmaceutical company. The company wanted to register a trademark with the taste of "artificial strawberries". OHIM rejected the application on the grounds that "any manufacturer ... is entitled to add an artificial strawberry flavour to its products in order to mask any unpleasant taste they might otherwise have or simply to give them a more pleasant taste. "(OHIM, Case R-120/2001-2).
The USPTO (US Patent and Trademark Office) has also rejected several applications for taste marks: peppermint flavour for cigarettes, orange flavour for antidepressants...
However, the U.S. doesn't completely close the door to registering a flavor. However, it would need to have acquired distinctiveness (as in the Play-Doh odour case).
See you soon for an upcoming article on non-traditional brands!