Acquiring a Flavor for Trademarks: There’s No Common Taste in the World

Abstract

This paper considers the viability of registering “flavor�? as a trademark based on the decision in In re N.V. Organon. Nontraditional trademarks have long been accepted in the United States, and the possibility of being able to protect flavor as a trademark is on the horizon. In 2002, N.V. Organon, a global manufacturer of an array of prescription medicines, filed a trademark application to register “an orange flavor�? for “pharmaceuticals for human use, namely, antidepressants in quick-dissolving tablets and pills.�? The Examining Attorney refused registration on two grounds: (1) the matter failed to function as a trademark; and (2) the matter was functional as used in connection with the goods claimed in the application. Organon appealed the decision to the Trademark Trial and Appeal Board, putting forth scant evidence to overcome either objection. This paper examines difficulties with protecting flavor as a trademark, and more importantly, explores whether we should allow exclusion.