For a better experience, click the Compatibility Mode icon above to turn off Compatibility Mode, which is only for viewing older websites.

Note - A Tasteful Expansion of the Already Full Plate of Intellectual Property


Determining flavor is generally viewed as a subjective inquiry, and because an individual’s perception of flavor is based on characteristics specific to that individual, it is assumed that there is no general consensus as to what a particular flavor may taste like. In terms of intellectual property, even as recent as November 2018, courts have found that flavor cannot be protected because of its subjective nature. The opinion that flavor is subjective should change because of the development of taste profiles, visualized through spider diagrams. Experts can accurately identify the flavor of a product and map it onto one of these diagrams, providing an objective standard for a product’s flavor. Courts can now use these profiles to characterize flavors in a way that provides them with protection under intellectual property laws. After providing an analysis of how all types of intellectual property—copyright, patent, trademark, and trade secret—can encompass flavor as a protectable item, this Note concludes that trademark law is the avenue companies will most likely pursue to obtain protection for their products’ flavors. Current trademark laws should be viewed more broadly to encompass the non-traditional mark of flavor.