Sunday, June 3, 2007

Don't laugh, I would suggest that there is such thing as "taste infringement"

I first saw the clip below a few months ago, but failed to blog about it at the time. Nevertheless, while my comments might not be as timely as they could have been, the ad raises an interesting issue in my view, namely, successful litigation involving non-traditional trademarks. A primer on non-traditional trademarks, including taste, can be found here.

While I'm not aware of any cases in the U.S. involving so- called "taste infringement," I did have the occasion recently to entertain a client's questions about the subject not too long ago, which peaked my interest.

Here's a link to a nice discussion of taste as a trademarkable feature in the U.S.; however, the outcome of that decision is far different in my view (denying orange as a distinct flavour for pharmaceutical products) than if enforcement over a "truly" distinct flavor, such as Coca Cola were to be litigated.


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