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.

MetaverseTrademarks 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 chhavi@khuranaandkhurana.com or at IIPRD.

Leave a Reply

Your email address will not be published.

three + 16 =

Archives

  • October 2022
  • September 2022
  • August 2022
  • July 2022
  • June 2022
  • May 2022
  • April 2022
  • March 2022
  • February 2022
  • January 2022
  • December 2021
  • November 2021
  • October 2021
  • September 2021
  • August 2021
  • July 2021
  • June 2021
  • May 2021
  • April 2021
  • March 2021
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • March 2011
  • February 2011
  • January 2011
  • December 2010
  • September 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010