Gustatory Mark : Its Registrability And Future In Metaverse

If one recalls the anime series of Flavour of Youth or the Master Chef episodes, where the participants are given food to taste for identifying the added ingredients or flavours. Or our day to day statements where we identify the missing or extra ingredient in food like ‘it is more sugary’ or ‘its garlic flavour is too much’ etc. Such instances make flavour an integral part of human life and something which helps to differentiate between human food and animal food. However, have you ever thought of a product which can be remembered for its flavour? Or Taste of your product will help it stand out even if its unedible? It can be made possible in the advent of Taste Mark.

[Image Sources : Shutterstock ]

Trademarks are classified into two broad categories: Conventional Marks like symbols, logos, words etc and Non-conventional marks like Smell Mark, Taste Mark, Tactile Mark, Sound Mark. TRIPS agreement defines Trademark “as any sign or any combination thereof  of a product which distinguishes one good from that of another is called as Trademark….Members may use visual perceptibility as a condition of for registration of trademark.” Although the above mentioned definition tends to be inclusive of non-conventional mark, in the end it is on to the member states to decide whether to include graphical representation under the definition of Trademark or not.

TRIPS Agreement allows member states to formulate their own national trademark laws that suits their society and circumstances well. However, certain standard parameters are accepted across maximum jurisdiction, which each type of mark must fulfil to obtain registration.

PARAMETERS FOR REGISTRATION OF TASTE MARK

Graphical Representation

A mark must be graphically represented to inform the traders as to what trademark has been applied for and the consumers as how to identify company’s product and services in the market. The same is not possible for flavour mark as it is subjective in nature. European Union adopted a modern approach to resolve the representation problem of non-conventional marks, especially smell mark and taste mark by relaxing the requirement of graphical representation and focussing on any manner of representation which is “clear, precise, self-contained, easily accessible, intelligible, durable and objective.” Article 3 and 4 of EUTMR and EUTMIR respectively, states that trademark can be represented in any other manner and by using generally available technology in which the subject matter of protection can be determined with clarity and precision. Further,WIPO’s Standing Committee on Law of Trademark has mentioned that some jurisdiction have accepted the descriptive representation of taste mark.

Therefore, a taste mark can be represented through a description similar to that of a smell mark. The description if made with the help of an international system, would be more precise and clear similar to that of Pantone Matching System used for Colour Mark.

Distinctiveness

A taste mark must be distinctive in nature or must have acquired secondary meaning by usage. It should not be generic for example general peppermint flavour. Acquired Distinctiveness will depend on the popularity of the product and consumer type. A coffee addict or a Barista will recognize the beans and its flavour in the coffee, but it may not be the case for a non coffee drinker. A company must work on its advertisement to create awareness among the consumer about its flavour and associated. Companies should work in the direction of eliminating deceptive similarities in taste mark.

Doctrine of Functionality

The doctrine of functionality under trademark refers to the functionality of mark i.e the mark must not be an essential attribute or utilitarian feature of the product. For example, obtaining smell mark for perfumes. Cologne main purpose is fragrance, if a fragrance is trademarked, then it limits the competition in the market. In Eli Lilly case and Re N.V. Organon’s case , the court rejected their application for grant of Strawberry flavour and orange flavour respectively, for pharmaceutical purposes because of the doctrine of functionality. In N.V. Organon’s case the court was of the opinion from the advertisement made on their website that the orange flavour covers the bitter taste of the antidepressant medicine, similarly in Eli Lilly Case the OHIM board stated that the consumer will not perceive flavour as a trademark rather something to disguise the unpleasant taste of medicine.

Taste mark is considered a feature of product, especially in case of food product. It would be challenging to obtain flavour mark for food product as ingredients determine the flavour and any alteration can alter the flavour. Further, like colour mark, flavours are also considered limited and a trademark in the generic flavours would lead to unfair advantage. Therefore it is suggested that flavour should be promoted for uneatable products. For example, toothpaste have added flavours of chocolate, oreo etc and company’s can easily obtain trademark in those flavour as it exist irrespective of the main function of toothpaste. It is no essential feature to the main product rather a taste enhancer to attract the consumer. Similarly, Strawberry coloured flavoured baby’s book.

TASTE MARK AND THE METAVERSE

Why do we need trademark? The main purpose of a Trademark is that it helps to distinguish one product from that of other. When we look at a trademark we either remember the source for example, the cap is of PUMA or it’s different from the other similar kind of product available in the market. For conventional marks this can be easily achieved by examining the symbol, logo, design, image, word etc. The same is not true for non-conventional marks especially in case of smell mark and taste mark. In both these cases, huge amount of money has to be disbursed for sample production and marketing.

One way to lower the expenses of the company is the metaverse. The TTTV or The Tele Taste TV Screen a prototype developed by the Japanese Professor along with his team of 30 students, which allows the user to taste a particular flavour of food by licking the screen. It has 10 flavour canisters, a combination of which is sprayed on the screen to create the desired flavour. Further, an app developed by an US based restaurant allows the customers to taste the food by licking its picture before dine in. These flavours of inedible  product can be tasted by the customer before it is purchased, this will cut the marketing cost of the company.

CONCLUSION

Non-conventional mark has an emotional attachment with the customer. With the increase in technology, it is gaining popularity among businesses. It is suggested that to incorporate non-traditional marks, countries must relax the criteria of distinctiveness and representation set in the definition of trademark. Further countries must work in the technological advancement to incorporate the working of metaverse in the world of Trademark.

Author:  Khushee Runthala – a student of National University of Study and Research in Law, Ranchi (NUSRL), in case of any queries please contact/write back to us via email [email protected] or at IIPRD.