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Food Flavours cannot be trademarked


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Written on 25 October 2014

A federal judge has ruled that no matter how good our baked ziti tastes, the flavour cannot be protected under trademark laws.

This follows after New York Pizzeria restaurant chain- Russo sued a rival chain- Gina’s Italian Kitchen for alleged taste infringement. Russo claimed they had trademark rights in the taste of their food, they alleged that Gina’s Italian Kitchen had infringed those trademark rights by what Judge Gregg Costa describes as “the flavour of its Italian food and the way n which it plates its baked ziti and chicken and eggplant parmesan dishes”
Russo’s have lost the lawsuit after judge Costa ruled that the flavour and presentation of the disputed Italian dishes were not subject to trademark infringement laws and further argued that the “flavour of food undoubtedly affects its quality, and is therefore a functional element of the product. 

Judge Costa also dismissed the claims that Russo’s plating style was protected by trademark laws and stated that Russo’s had failed to prove what was “distinctive and non-functional” about the way it plated its eggplant parmesan.
Trademark rights can be acquired for words, slogans etc. that are capable of distinguishing the goods/services of one business from those of another. In certain limited circumstances a products features may be capable of being a trademark (independently of the product’s brands) and thus may also be protected under trademark laws. For this to happen consumers must view the features of the product as signals of the source of the product. But, however a feature can never be protected by trademark laws when the feature in question is functional or necessary for a technical function. This means that if it is essential to the use or purpose of t product an also if it affects the cost or quality o the product. Where the product in question is food, flavour will almost always be functional. The court explained this point in more detail.

“the main attribute of food is its flavour, especially restaurant food for which customers re paying a premium beyond what it would take to simply satisfy their basic hunger needs…NYPI does not allege that its supposedly unique flavouring is merely an identifier given that the favour of pasta and pizza has a functional purpose.

About the Author

Lawdit Solicitors offer services and advice for litigation, commercial contracts, Intellectual Property and IT legal agreements. We are experts in commercial law with a heavy emphasis on Intellectual Property, Internet and e-commerce law. Lawdit is a member of the International Trademark Association, the Solicitors' Association of Higher Court Advocates and we are the appointed Solicitors to the largest webdesign association in the world, the United Kingdom Website Designers Association.

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Article Published/Sorted/Amended on Scopulus 2014-10-29 09:00:21 in Legal Articles

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