21.10. Other kinds of non-traditional signs

Date Published

In some overseas jurisdictions, applications have been made for trade marks consisting of taste and of feel or texture.  An example is US registration 2751476 which was registered in 2003.  The trade mark is described on the record as “the mark is flocked texture on a label to be used on a glass bottle”.

Feel or ‘texture’ falls into the definition of sign and it is thus possible that an applicant could be successful in an application for a texture as a trade mark.  The usual tests apply as they do for any other kind of trade mark.  The applicant needs to provide an appropriate representation and description, and the usual tests for capacity to distinguish also apply.  As can be seen from the US registration quoted above, in order to achieve registration, the texture would need to be something that was not common to the particular trade.  The textures of linen, leather, silk or fur, for example, would not be capable of distinguishing within the clothing trade.

Taste trade marks have also been the subject of applications in the US, as well as within the European Community.  While “taste” arguably falls within the definition of a sign, it is difficult to determine how a taste or flavour could serve to distinguish an applicant’s goods.  It may often not be practical (or hygienic) for a customer to taste goods prior to selection and purchase.  Tasting the goods after purchase does not seem to meet the requirements of denoting a trade source.

It is also common for flavours to be used to mask an unpleasant taste, as, for example, cherry or strawberry flavouring for children’s pain relieving syrups and other medicines.  The flavours in these cases have a functional purpose, and as noted previously for other kinds of non-traditional signs, are thus not adapted to distinguish.  

If an applicant was to apply for a taste trade mark, the application would require the same kind of description as is expected for scent trade marks.  The taste would need to be described in words which make it clear exactly what the flavour is.  It would also need to be clear from the description how the taste was to be used in respect of the goods claimed.  

Note that an orange flavour for an antidepressant medication has been rejected in the US (In re N.V. Organon, 79 USPQ2d 1639) on functional grounds, and OHIM rejected the pharmaceutical company Eli Lilly’s attempt to register the taste of artificial strawberries in its decision in case R 120/2001-2.

We do not have many applications filed as taste or texture/feel marks.

At present “Taste” and “Feel” marks are to be found in Australian Trade Mark Search  by searching these words in the “part image” section.

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