Rebel cartoon stick figure with green hair pointing at a chalkboard with “Taste Marks” written in large chalk letters — representing a blog post about taste marks and non-traditional trademarks.

Non-traditional trademarks are unconventional and unique forms of trademarks, including trade dress, color marks, shape marks, configuration marks, position marks, sound marks, scent marks, motion marks, hologram marks, texture marks, and taste marks. Non-traditional trademarks are less common than traditional trademarks but provide a creative and innovative way for businesses to establish and protect their brand identities.

Let’s talk about taste marks. We know what you are thinking: “A taste mark? Really? That’s possible?” Well, you are half right.

Theoretically, it is possible to trademark a taste. A taste mark protects a unique flavor that identifies the source of a product having the taste. In order to register as a trademark, the taste mark must be non-functional and distinctive, and the trademark owner must provide evidence that the taste mark is recognized by consumers to be a trademark (“acquired distinctiveness”).

In reality, to date it has been impossible to register a taste mark as a trademark. The biggest hang up? A taste mark must be non-functional, meaning it cannot protect features essential to a product's function or use. The taste of a product is often essential for the product's purpose and utility, not just a brand identifier. For example, the flavor of a food is often designed to enhance the overall experience of eating the food, and the flavor of a medicine is often designed to mask unpleasant tastes of the medicine.

There have been nine attempts to register a taste trademark, by three companies, but they all failed. N.V. Organon attempted to file two trademark applications for an orange flavor applied to “antidepressants in quick-dissolving tablets and pills” [1]. Herbal Water, Inc. attempted to file six trademark applications, each for a variety of different flavors in connection with “non-alcoholic flavored beverages” [2]. G. Pohl-Boskamp GmbH & Co. KG attempted to file one trademark application for “the distinctive flavor of peppermint in connection with nitroglycerin” [3]. But, all of the trademark filings were rejected for being functional and not being recognized by consumers as being a trademark.

If any taste mark filing is successful in the future, we will keep you updated!

In the meantime, want to learn more about trademarks? Check out our posts on I Think I Understand IP, But Can You Give Me An Example?, Trademark Genericide, and 5 More Key Facts About Trademarks.