Trademark protection for tastes
In today’s era of knowledge and technology, the protection of intellectual property rights is one of the issues that countries are increasingly concerned about. Therefore, the need for protection in export markets for trademarks is also increasing. However, there are differences in the protection of trademarks between countries, affecting the interests of the parties and one of them is the regulation of marks that can be registered as trademarks. More specifically, the issue of protection of non-traditional trademarks, especially in terms of taste marks (or flavor marks).
According to INTA (International Trademark Association) and AIPPI (International Association for the Protection of Intellectual Property), non-traditional marks that are not recognizable by sight are marks recognized by other senses such as hearing, smell, touch, and taste including sound marks, scent marks, taste marks, and tactile marks.
Accordingly, a taste mark is defined as a mark that uses taste to distinguish the commercial origin of a product or service. Like scent marks, taste marks face difficulties in graphically representing taste signs, because the taste of the product itself must be associated with the product. Perceptions based on senses other than visual are often affected by sensory impairment and confusion.
Taste signs will often be recognized differently because each person’s taste is completely different, in addition, the taste will also be changed due to the effects of objective factors such as time, humidity, and temperature,… Therefore, currently among the marks that are not recognized by sight, the scent and taste signs are often less accepted by countries for protection than the sound marks.
For example, in the coming change of IP Law in Vietnam, this country only recognizes sound marks, not scent or smell marks. Perhaps in the next amendment to the IP Law which will likely be at least 10 more years, the use and protection of taste marks might be included.
The first taste trademark application was in the US, registering an orange flavor for an effervescent immunosuppressant, however, the USPTO refused protection on the grounds that the flavor was of functional nature, incapable of distinguishing with other products.
First, the taste is one of the characteristics of oral drugs, consumers often do not consider taste as a sign of recognition like a brand. In addition, the orange flavor is often used in the field of pharmaceuticals and drug processing, which is functional for this type of product. Granting a monopoly on the use of this flavor to one pharmaceutical company will affect other pharmaceutical companies.
Hypothetically, what if someday, a patient needs help but the hospital is refused to use a drug with an orange flavor to save that patient due to IP Law?
Difficult to the protection of taste marks
From that, we can draw some challenges in taste trademarks protection as follows:
– The challenge in developing criteria for evaluating non-traditional trademarks to be registered for protection, namely:
- It is difficult to imagine a single important flavor that can be protected. This is explained by a considerable degree of subjectivity in the perception of different tastes, smell, sound, and touch characteristics of people.
- Most products that give a characteristic taste are not isolated chemical compounds, but complex mixtures for precise analysis.
– The challenge in training experts to assess and appraise protected objects: Because non-traditional trademark protection requires experts with good and objective perception in assessing the ability to be protected (This is extremely difficult in real life. Currently, only the sommelier – the master expert in the tasting of wine is a similar example for the examiners of taste trademarks)
– The challenge in creating a complete standard system for registering taste marks is because there are so many external factors that can affect the taste.
– The challenge of allowing subjects to freely register non-traditional trademarks: Applicants can begin to abuse their rights and register all of the non-traditional marks, overloading the system, leading to adverse consequences such as establishing a monopoly over a certain subject.
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