Orange Flavor Mark Not Registrable in the U.S.
With regard to functionality, the Board applied the four-factor Morton-Norwich analysis to conclude that applicant’s touting of the functional nature of its orange flavor, and the lack of evidence of acceptable alternatives, supported a finding of utilitarian functionality in this case.
The Board then went on to note that the orange flavor failed to function as a trademark for these goods:
There is nothing in the record to indicate that “an orange flavor” for
applicant’s antidepressants would be perceived as a trademark for them. On the
contrary, the record shows that an orange flavor is used in numerous medicines.
As a result, consumers would not view the orange flavor of an antidepressant
tablet or pill as a trademark; rather, they would consider it only as just
another feature of the medication, making it palatable. To be sure, the record
is completely devoid of any evidence of consumer recognition of applicant’s
“orange flavor” as a trademark. Inasmuch as flavors, including orange, are a
common feature of pharmaceuticals, we find that consumers would not view
applicant’s orange flavor as a trademark.
. . . Because flavor is generally seen as a characteristic of the goods, rather than as a trademark, a flavor, just as in the cases of color and scent, can never be inherently distinctive. As previously discussed, flavor, including an orange flavor, is so intrinsic a feature of pharmaceuticals, that consumers will not perceive a flavor, even a "unique" orange flavor, as a trademark unless they have been educated to perceive it as such. Thus, any registration of a flavor requires a substantial showing of acquired distinctiveness. Evidence of acquired distinctiveness was not introduced in this application.
Although our decision is based on the analysis set forth above, we are not blind to the practical considerations involved in the registration of flavor marks. Flavor perception is very subjective; what applicant considers to be a unique and distinctive orange flavor may be considered by patients as simply an orange flavor. Moreover, the Office’s examination of flavor marks, not to mention litigation at the Board, would be very problematic. . . .