Tuesday, October 21, 2014

Trademark Protection for Food? It Doesn't Pass The Smell Test!

The federal court in Houston ruled yesterday that the flavors of Italian cooking, and the arrangement of Italian food on a plate, cannot be protected under trademark law. The opinion is here. The plaintiff, New York Pizzeria, Inc., argued that the flavors created by its pasta and pizza are protectable trademarks. It also argued that the plating of its foods -- that is, the appearance of its baked ziti, eggplant parmesan and chicken parmesan -- are protectable trade dress, But the court determined that food flavor is a functional element of food and, therefore, unprotectable.

"But the other main attribute of food is its flavor, especially restaurant food for which customers are paying a premium beyond what it would take to simply satisfy their basic hunger needs. The flavor of food undoubtedly affects its quality, and is therefore a functional element of the product."

The court also determined that while it is theoretically possible for the arrangement of food on a plate to be protectable as trade dress, the plaintiff's burden is very high. Only if plating is inherently distinctive or has acquired secondary meaning -- when plating serves no functional purpose -- can there be a potential infringement claim, but only if there is a likelihood of consumer confusion. The court denoted this plating claim as representing a "very high standard."

No comments: