A federal district court in Texas dismissed intellectual property claims based on the taste and style of plating for pizza, ziti, chicken, and other dishes.



A Houston-area pizza chain called New York Pizzeria filed suit alleging that a former employee conspired with others to steal the chain’s secret recipes and other proprietary information so that they could open a rival chain.
New York Pizzeria made a number of claims against the defendants, including:

  • violations of computer fraud and electronic records acts, for accessing a computer system to download proprietary information
  • violations of the Lanham Act (which governs trademarks and trade dress), for copying New York Pizzeria’s “distinctive flavor and plating methods”
  • misappropriation of trade secrets and unfair competition, for using New York Pizzeria’s “recipes, recipe books, plate specifications, ingredients, suppliers, and training and restaurant operations manuals”
  • breach of non-disclosure agreements

Can a Flavor be Trademarked?

New York Pizzeria argued that its “specially sourced branded ingredients and innovative preparation and preservation techniques contribute to the distinctive flavor” of its dishes and that the defendants infringed their trademark rights by using those ingredients and processes.

The court noted that there is no special legal rule that prevents flavor from being used as a trademark, and that the Lanham Act encompasses “almost anything at all that is capable of carrying meaning.”
The court accepted that flavor can “carry meaning,” but noted that “meaning entitles a mark to trademark protection only if it distinguishes the source of a product.”

Also, functional product features are not protectable under trademark law, and the “functionality doctrine is a significant hurdle for any party seeking to protect a flavor as a trademark.”
For example, the Trademark Trial and Appeal Board denied trademark protection for orange-flavored pills on functionality grounds. Because medicine often has a disagreeable taste, flavoring performs a utilitarian function.

Further, found the court,

If the hurdle is high for trademarks when it comes to the flavor of medicine, it is far higher—and possibly insurmountable—in the case of food. People eat, of course, to prevent hunger. But the other main attribute of food is its flavor, especially restaurant food for which customers are paying a premium beyond what it would take to simply satisfy their basic hunger needs. The flavor of food undoubtedly affects its quality, and is therefore a functional element of the product.

The court thus dismissed New York Pizzeria’s trademark infringement claim.


The court noted that there might be some rare circumstances in which the plating of food could be given trade dress protection:

When plating is either inherently distinctive or has acquired a secondary meaning, when it serves no functional purpose, and when there is a likelihood of consumer confusion, it may be possible to prove an infringement claim. It is conceivable that certain well-known “signature dishes” could meet this very high standard.

However, New York Pizzeria failed to meet the burden of showing that its plating was distinctive and so the court also dismissed its claim for trade dress infringement.


If you have questions about what types of things can be trademarked, please contact our office at 626-796-4000 or toll-free at 855-UR-IDEAS (855-874-3327) for a free initial consultation with one of our intellectual property attorneys. Please also visit our website at http://leechtishman.com/practices/intellectual-property/ for more information about us.

Photo: public domain

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