Trademark

by Timothy Geigner


Filed Under:
flavor, pizza, recipes, trademark



Pizzeria Attempts To Trademark The Flavor Of Pizza. Yes, Seriously.

from the savor-the-flavor dept

Trademark, while generally one of the better forms of intellectual property as used in practice and in purpose, can certainly still be abused. It can also fall victim to an ever-growing ownership culture that seems to have invaded the American mind like some kind of brain-eating amoeba. And that's how we've arrived here today, a day in which I get to tell you about how there is currently a trademark dispute over the flavor of pizza. And no, I'm not joking.
New York Pizzeria, Inc. is the plaintiff in this case that was brought after its former president allegedly conspired to create a knockoff restaurant chain called Gina's Italian Kitchen using NYPI's recipes, suppliers and internal documents. The lawsuit includes an allegation of a computer hack, but we'll focus on the judge's analysis of the trademark claims.

"Intellectual property plays a prominent and growing role in our Information Age economy," opens Texas judge Gregg Costa's opinion this week. "In this case, though, the plaintiff seeks intellectual property protection for something quite traditional: the meal one might order at a neighborhood pizzeria."
So, we have two pizza shops in a fight over ingredients and flavor. What NYPI is claiming is specifically centered around the resulting flavor of the two pizzas as a matter of trademark infringement. The claim is that their flavor is distinct. So distinct, in fact, that consumers would recognize it as solely NYPI's, even if coming from Gina's Italian Kitchen. The judge, as it turns out, was exceptionally good on this claim.
"As with colors, it is unlikely that flavors can ever be inherently distinctive, because they do not 'automatically' suggest a product's source," he writes. But even if pizza fans can close their eyes, bite into one, and recognize a slice of New York Pizzeria when they taste it, Judge Costa gives a second reason why trademark protection can't extend to taste: "Functional product features are not protectable," he writes.

The judge points to a prior decision at the Trademark Trial and Appeal Board as precedent. a pharmaceutical company attempted to gain a trademark on the orange flavor of its medicine, but that was ruled out-of-bounds when the TTAB decided that by flavoring a disagreeable taste, the company merely "performs a utilitarian function that cannot be monopolized without hindering competition in the pharmaceutical trade."
Judge Costa goes on to note that the scrutiny of trademark law applying to the flavor of pizza logically should be much greater than even the flavor of medicine. It's a very nice way of calling this whole thing silly and telling everyone to go home. The case has been summarily dismissed, thankfully. Were this sort of dispute allowed to find any kind of foothold, a well-functioning foods industry could be tossed completely for a loop. The trademark-able flavor angle would essentially be an end-around the fact that copyright doesn't apply to recipes. After all, if you can simply protect the end result of the recipe, what would be the difference?

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  • icon
    TwelveBaud (profile), 30 Oct 2014 @ 4:32am

    Patent 8,951,662: A System and Method for Producing a Distinctive Pizza, Calzone, or other Bread and Tomato Sauce Product Flavor.

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 30 Oct 2014 @ 4:44am

    I wonder how do you enforce a patent the resulting taste of combining pasta, tomato sauce, ham, cheese and oregano or something. Taste police?

    reply to this | link to this | view in chronology ]

  • identicon
    Michael, 30 Oct 2014 @ 4:52am

    New York Pizzeria, Inc. is the plaintiff in this case

    Does anyone else see the irony in this? A New York pizzeria trying to trademark their taste? Shouldn't they be spending their time trying to make their pizza taste like Chicago pizza?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Oct 2014 @ 5:13am

      Re:

      Only if they're aiming to make it suck.

      reply to this | link to this | view in chronology ]

    • icon
      Jeffry Houser (profile), 30 Oct 2014 @ 5:13am

      Re:

      Are those fighting words? Queue a John Stewart clip now...

      reply to this | link to this | view in chronology ]

      • icon
        Dark Helmet (profile), 30 Oct 2014 @ 6:22am

        Re: Re:

        That John Stewart bit was funny, but ultimately ironic. His chief complaint about Chicago stuffed pizza apparently consisted of his determining that it was more like a casserole than a pizza, then he proceeded to show us all how to eat a New York flaccid pizza piece like a burrito. I was more than a little surprised at the hypocrisy.

        Plus, a Chicago style pizza actually has ingredients you can taste, whereas a New York pizza is fried flatbread with once-tasty but now rendered flavorless toppings....

        reply to this | link to this | view in chronology ]

        • identicon
          Michael J. Evans, 30 Oct 2014 @ 9:12am

          Re: Re: Re:

          Two wrong (pizzas) do not make a right.

          Chicago can keep their casserole (please call it something other than Pizza) and New York can keep their grease soggy shingles (they probably were pizza when fresh from the oven).

          A proper pizza has a thin, crispy, flavorful dough.
          A proper pizza has rich, zesty, abundant tomato sauce.
          A proper pizza has just the right blend of cheeses to clad that foundation.
          Toppings are optional; sprinkles on top of this vessel of food perfection.

          (Larger chains I like the pizza flavor from: Round Table Pizza, Pizza Haven, Pietro's Pizza (sp) (haven't had either of them in years, still in business?), and though it wasn't as flavorful the /old/ Dominos recipe was quite easy to digest and the only pizza I could reheat properly without ruining it.)

          reply to this | link to this | view in chronology ]

          • icon
            John Fenderson (profile), 30 Oct 2014 @ 10:10am

            Re: Re: Re: Re:

            "A proper pizza has a thin, crispy, flavorful dough."

            I reject this part of your definition of a proper pizza. Although what you describe does count as one, it's far too restrictive. That's a bit like saying that a proper sandwich has to have a very specific type of bread.

            I think that what you really mean is "pizzas I prefer have..."

            reply to this | link to this | view in chronology ]

        • icon
          toyotabedzrock (profile), 30 Oct 2014 @ 6:57pm

          Re: Re: Re:

          You really need to try our pizza in the NYC/nj area again.

          reply to this | link to this | view in chronology ]

      • identicon
        Michael, 30 Oct 2014 @ 8:38am

        Re: Re:

        No, those are not fighting words, I'm just saying instead of trying to trademark the taste of feet, they should try to make the product better.

        reply to this | link to this | view in chronology ]

    • icon
      scotts13 (profile), 30 Oct 2014 @ 5:54am

      Re:

      I guess it IS a distinctive regional taste. We actually have a self-proclained "New York Style" pizzeria here in Pennsylvania. The pizza is slightly thinner, and much greasier, than the other shops in the area.

      reply to this | link to this | view in chronology ]

    • icon
      tqk (profile), 30 Oct 2014 @ 6:44am

      Re:

      Does anyone else see the irony in this?

      What, that perhaps the Italians might want wade in here?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Oct 2014 @ 5:50am

    I'm actually surprised the IP trolls didn't suggest something like "moron in a hurry".

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Oct 2014 @ 5:56am

    "Texas judge Gregg Costa"

    Aren't these pizzerias in NY?

    I smell a trademark troll.

    reply to this | link to this | view in chronology ]

  • identicon
    Bengie, 30 Oct 2014 @ 6:07am

    Maybe

    If they used the flavor of the Pizza to sell other stuff and the Pizza was free, I could see a possible argument that it's a "trademark" in a way.

    I can't wait to see people trademarking textures and smells.

    reply to this | link to this | view in chronology ]

  • icon
    Geno0wl (profile), 30 Oct 2014 @ 6:19am

    Imagine if you could Trademark or copyright food

    Then what granular level would people go to find a distinction?
    "well MY recipe uses kosher salt, not sea salt."
    "My recipe uses cooking temps of 425 F not 350 F"
    "My recipe adds some cumin instead"

    The slight variations you could extend out just ONE recipe would be humongous.

    reply to this | link to this | view in chronology ]

    • identicon
      MacCruiskeen, 30 Oct 2014 @ 6:38am

      Re: Imagine if you could Trademark or copyright food

      In fact, the food world is very much like that. This is partly why recipes as such are not covered by copyright law. This has been an issue for restaurants trying to keep their recipes proprietary for as long as their have been recipes and restaurants. The only way is to claim it is a trade secret, and a trade secret is only as good as your ability to actually keep it a secret. Chefs know that when they train a cook, that cook is leaving with that knowledge in their heads, and have tried all kinds of crazy and ultimately futile tactics to keep them from using it. A producer with sufficient market clout might try to get an exclusive deal with a supplier. But that seems unlikely in this case. And that would be a contract issue, not a trademark one.

      reply to this | link to this | view in chronology ]

      • icon
        John Fenderson (profile), 30 Oct 2014 @ 8:02am

        Re: Re: Imagine if you could Trademark or copyright food

        One of the things that makes an experienced software engineer more valuable than an inexperienced one is that as you gain experience, you gain a repertoire of software "recipes" -- so an employer is hiring them in large part for their "cookbook." I had always assumed the same was true for chefs.

        reply to this | link to this | view in chronology ]

    • identicon
      Michael, 30 Oct 2014 @ 8:40am

      Re: Imagine if you could Trademark or copyright food

      It would not take long to end up just like the pharmaceutical industry.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Oct 2014 @ 6:31am

    You can not "IP" a recipe.
    This has already been decided, case will get tossed.

    reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 30 Oct 2014 @ 8:04am

      Re:

      You can't copyright a recipe, but I was unaware of a similar ruling about trademarks.

      reply to this | link to this | view in chronology ]

      • identicon
        Michael, 30 Oct 2014 @ 8:47am

        Re: Re:

        You cannot get copyright on a simple listing of ingredients, but a recipe that includes literary expression can qualify for copyright. However, all that would do is prevent someone from reproducing your version of the recipe (as in copying the page from your cookbook into another cookbook) - it would not stop someone from actually following the recipe.

        You MAY be able to get a patent on your "process for creating an edible flat dish covered in cheesy goodness", but I'm thinking there may be a prior art problem - plus the whole "rounded corners" issue.

        Trademark on the taste is actually an interesting (misguided) idea. If Harley Davidson can get a trademark on a sound, taste doesn't seem that far behind, but I am glad this judge disagreed.

        reply to this | link to this | view in chronology ]

        • icon
          John Fenderson (profile), 30 Oct 2014 @ 3:00pm

          Re: Re: Re:

          " If Harley Davidson can get a trademark on a sound, taste doesn't seem that far behind, but I am glad this judge disagreed."

          I think the key point about trademarks in this case is that you can't trademark something that is purely functional. The Harley sound is not, but this judge ruled that the pizza taste in question was. It's certainly not inconceivable that someone could engineer a pizza taste that could pass that test.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Oct 2014 @ 7:12am

    What a saucy attempt, at trying to make some dough.

    reply to this | link to this | view in chronology ]

  • icon
    Farley Finster (profile), 30 Oct 2014 @ 8:53am

    Functional product features

    As anyone who ever heated up a frozen pizza can confirm there's a good argument to be made for flavour being "trade dress".

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymouse, 30 Oct 2014 @ 8:58am

    Why no sir, my s**t does NOT stink. It is a trademark protected unique aromatic that lets my fans and detractors know they have the right a** for kissing or kicking, thank you.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Oct 2014 @ 9:19am

    I'd like to trademark...

    Tastes Like Shit!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Oct 2014 @ 9:42am

    I'm expecting someone to try and trademark or patent water next.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Oct 2014 @ 12:35pm

    Surprised nobody caught this earlier...

    Regarding the "Plating" claim (presumably, layout of the pizza "on the plate"):

    While the flavor infringement claim is plainly half-baked,...

    reply to this | link to this | view in chronology ]

  • icon
    John85851 (profile), 30 Oct 2014 @ 3:40pm

    No citing court documents = bull

    Sorry, but I call bull*** on this story. Neither you nor the linked Hollywood Reporter story cite the actual case nor does anyone provide a link to ANY court documents. (And you guys are usually good about embedding court document in the article.)

    Other giveaways that this story is probably bull: no one mentions the defendant, no one mentions a street address or city for the pizzerias, and of course, there's source listed in the Hollywood Reporter article. So where exactly did that reporter get his story? And why are you running the story without proper verification?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Oct 2014 @ 7:53pm

      Re: No citing court documents = bull

      It might not have been there earlier, but there's a court document linked immediately after the article now.

      reply to this | link to this | view in chronology ]

  • identicon
    Andrew D. Todd, 30 Oct 2014 @ 4:39pm

    Counter-Suit

    Well, if you read the court finding, the plaintiff fired the defendant, for unknown reasons; then the defendant turned around and started his own restaurant chain, poached employees; and sued for improper dismissal, which presumably means stuff like severance pay; then the plaintiff instituted a suit over intellectual property, etc. The trademark and Lanham suit seems like a more or less contrived case for purposes of retaliation. Probably, the trade secrets claims will prove to be equally specious, though those are questions of fact rather than law. What the former employer probably really resents is someone going through his restaurant managers, recruiting all the non-drunks, and leaving him with the residue.

    The recipes will probably prove to be substantially similar to those found in published cookbooks. Chains are not very audacious-- they don't have the nerve to do something like a Indian Curry Pizza, or a Hungarian Goulash Pizza, or a Szetchuan Pizza. You know, do to a basic pizza, whatever the national cuisine would do to a dish of potatoes. To make an Italian dish into a French-style dish, use less oregano and rosemary, and more sage, savory, and thyme; replace tomatoes with grapes (*); and use swiss cheese (gruyere) instead of mozzarella, and finely-sliced ham instead of sausage. So, French Pizza. I remember actually eating a kind of pocket sandwich along those lines, sold by a Basque woman in a street market in Oregon. At any rate, this kind of thing is simply beyond a chain restaurant.

    (*) Probably use a concoction made from pulverized grape pressings, which are a byproduct of juice/wine production. Pressings are commonly used to make brandy.

    Chain pizza is not exactly distinctive in flavor, and it's usually not very well cooked. It works out to giving an unskilled minimum wage counterman written directions to cook something for X minutes, while doing other work, rather than teaching him how to recognize when something is fully cooked. I looked up pizza in Adele Davis's _Let's Cook it Right_ (1947, 1962), and found an observation that you can manage the rising and moisture content of a pizza by pricking it every inch or so with a fork. Come to that, you can even design a special fork with, say, a hundred extremely sharp prongs and a long enough handle to be capable of reaching into the oven. Such a fork is not patentable or a legitimate trade secret-- it is immediately obvious over Adele Davis's advice.

    In a neighboring field, McDonald's actually did create, circa 1970, an instrument which could measure the extent to which french fries were cooked, and ring a buzzer, or cause the fry basket to be lifted out of the fryer. There is no mention of any such instrument in this case.

    Pizzas and french fries are commercially salable because the need for the special cooking apparatus, a pizza oven or a deep-fat frying, make them fairly difficult to make at home. Stew, and various cognate dishes such as chili, can be cooked, and frozen, and thawed out in a microwave oven. The basic test of freezability is whether the dish admits of being stirred together to equalize thawing/cooking/heating. People buy quantities of frozen entrees in the supermarket, and store them in the freezer. Big chain restaurants don't seem to be able to cook this kind of thing well enough to be able to break into the market at necessarily much higher prices.

    In the real world, recipes are not what chain pizza outlets compete on. I've got a local Menu Guide, which I picked up out of a box someone left in the laundry room. The chain pizza outlets are conspicuous for their absence, and the same goes for the display ads in the yellow pages. The chain pizza people decided in effect that they couldn't compete in what amounted to a virtual food court. What the chains do is to advertise by junk mail, and a characteristic way of spending money is to attach the advertisement to one of those rubber magnets, in the hope that it will get stuck to the refrigerator, instead of getting thrown out with the trash. Chain pizza outlets seem to be very big on discount coupons. I suppose, nowadays, there are these Iphone apps. The whole point of the exercise is to get a sale by virtue of the customer not knowing how to contact the competition.

    I actually chose an owner-operated pizza parlor on the basis of its being 1500 feet away, and there being a good chance of the food arriving while it's still hot. I went in, got a take-out order of salads, talked to the people, got a menu, and wound up actually placing a delivery order when I was snowbound.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Oct 2014 @ 8:00pm

      Re: Counter-Suit

      I make a mean home pizza, cheddar and chutney, on the grill.

      But yea, most home cooks really struggle to get decent pizza dough and a hot enough fire. I couldn't do what I do in my oven, and that it works on the grill still boggles me sometimes.

      reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 31 Oct 2014 @ 8:28am

      Re: Counter-Suit

      "Chain pizza is not exactly distinctive in flavor, and it's usually not very well cooked."

      Replace "pizza" with "restaurants" and your statement hold equally true. Chain restaurants of any sort server industrial food, and prioritize things like being able to keep a minimal number of ingredients in stock, cost, and speed & ease of preparation over food quality.

      reply to this | link to this | view in chronology ]

      • identicon
        Andrew D. Todd, 31 Oct 2014 @ 2:19pm

        Re: Re: Counter-Suit

        Well, a spice cupboard doesn't take up much space, and you can do almost anything with a spice cupboard and a set of basic groceries. I think the real issue is a sort of mental blandness.

        What I do at home is not pizza per se, but a kind of cheese-bread: take the crustiest rolls I can conveniently get, stick them in the toaster-oven, put cheese, etc., on them, and microwave them. These don't keep very well, so they have to be eaten directly, and would not be practical for a restaurant, or even for a set family dinner, but they work well enough for a bachelor cook-something-and-eat-it, cook something-else-and-eat-it system.

        Pizza seems to have taken root in the United States in the 1950's. I have some old Mad Magazine issues, and paperbacks reproducing older Mad material. Mad found pizza an incredibly ludicrous idea. I think it must have been their first encounter with cooking from outside Northern Europe. It remains the single biggest exception to Northern European meat-and-potato habits. Pizza is not really authentic Italian food, of course:

        https://www.techdirt.com/articles/20091109/1808446860/dailydirt-tips-optimal-pizza-eating.sht ml#c134

        Pizza (and chain pizza in particular) is mostly sold to people who haven't moved on to third-world cooking in general. The little mom-and-pop restaurants are all third-world. One generality of third-world cooking (Indian, Chinese, Mexican, etc.) is that you don't bake things together. You have one or more stews, which you pour over rice or noodles, or wrap up in a piece of bread (pita, tortilla, Ethiopian Injera bread, etc.). If you don't do your own bread-baking, everything else you need can be made in pots, or kept in the refrigerator, and brought together at the table. In the most extreme form of mom-and-pop restaurant, you go up to the counter, and point to the various dishes, because the server doesn't speak English, you get a plate of rice with scoops of various different things on top. Like as not, the owner's grandkids will be sitting at a table in back, doing their homework, and their voices will tend to fill the place. Third-world cooking tends to get domesticated, unlike pizza.

        I mostly grew up in Cincinnati, and, apart from the German food, one of the specialties of Cincinnati is Cincinnati Chili, which, confusingly, is actually Lebanese. The deluxe version of Cincinnati Chili in a chili parlor is a "five-way," meaning a layer of pasta, a layer of kidney beans, a layer of raw chopped onions, a layer of chili, and a layer of shredded cheese, served on a saucer-like plate.

        ------------------------------------------------------------------------
        Here is a recipe for Cincinnati Chili, copied years ago from my sister's recipe-book:

        1 qt. water
        2 medium onions
        16 oz. tomato sauce
        5. whole allspice
        1/2 teaspoon red pepper
        1 teaspoon ground cumin
        2 lbs. ground beef
        4 cloves garlic
        4 tablespoons chili powder
        2 tablespoons vinegar
        1. large bay leaf
        5 whole cloves
        2 teaspoons Worcester sauce
        1/2 oz. bitter (baking) chocolate
        1-1/2 teaspoons salt
        1 teaspoon cinnamon

        Add ground beef to water in a 4 quart pot. Stir until the beef separates to a fine texture. Boil slowly for 30 minutes, and then stir in the rest of the ingredients. Simmer 3 hours uncovered, and the 1 hour covered, and lift the grease.
        ---------------------------------------------------------------
        You will perceive that this recipe calls for five hours of cooking and preparation. For household use, you make it in bulk, freeze portions in tupperware, and zap them in a microwave. When we were in our twenties, in a an off-campus neighborhood, my sister found it practical to more or less keep open house with the stuff, serving bowls of chilli instead of cups of coffee to random visitors.

        Not being that good a cook, I have modified the recipe for my own convenience, replacing whole cloves and seeds with powdered spices, and using canned tuna instead of beef. I open a can of (chunk light) tuna, tip it into a paper bowl with various spices and dried stuff, mix it together, cover it with a paper plate, and stick it in the microwave for four minutes at 600 watts.

        reply to this | link to this | view in chronology ]

  • icon
    toyotabedzrock (profile), 30 Oct 2014 @ 6:58pm

    I love how this devolved into a fight about what real pizza is.

    However I am wondering why a Texas judge was involved in this case.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Oct 2014 @ 8:31pm

      Re:

      A texas judge was involved because it's a fight between 2 Texas companies (despite the names).

      Also, this is not the first time the Gina's guy has been sued for "recipe ripoff", a highly distinctive and succesful taco chain, Torchy's Tacos, has also sued the guy...

      reply to this | link to this | view in chronology ]

  • icon
    Zeissmann (profile), 30 Oct 2014 @ 8:06pm

    Know-how

    There actually is a way to legally "protect" recipes, namely something called a know-how (you don't seem to discuss this topic to much on techdirt). This angle might work if the plaintiff can prove that they took measures to actually keep the recipe a secret and that the recipe was stolen. Hard to imagine that could be applied to something as trivial as a pizza recipe, though. Still, I would expect even a half-assed lawyer to know that this is probably a better approach than a trademark dispute.

    reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 31 Oct 2014 @ 8:32am

      Re: Know-how

      "This angle might work if the plaintiff can prove that they took measures to actually keep the recipe a secret and that the recipe was stolen."

      Yes, this is called a "trade secret" and does work nicely when done properly. If that had been the mechanism they used, this would not be so remarkable. Instead, they chose to try to abuse trademark law.

      "Hard to imagine that could be applied to something as trivial as a pizza recipe, though."

      It's very easy to imagine, actually. Equally trivial trade secrets that are in play all around you include: KFC's blend of herbs and spices and the recipe for Coke. There are many, many more -- those are just the two off the top of my head.

      reply to this | link to this | view in chronology ]

  • Non-traditional trademarks

    Colors indeed can and often do become distinctive indicators of source. Sounds have also been declared distinctive indicators. So why not taste?

    reply to this | link to this | view in chronology ]

  • identicon
    daniel, 21 Jul 2016 @ 12:04am

    Fr I think patenting pizza would be wrong idea.

    reply to this | link to this | view in chronology ]


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