Taste marks: law, science, and facts

The radar chart below (also known as a spider plot) represents flavours of coffee beans. Each coffee had its own chart, depicting its taste, attributes, and strengths, thereby assisting the consumer in purchasing coffee beans according to their preferences.

This simple coffee chart led to a convolution of law, science, and facts that culminated in the question of whether a taste mark can be registered under law. This article attempts to answer that question.

At the beginning of the research, this appeared to be an exercise in floccinaucinihilipilification, as the law, interpretation, and citations seemed to be settled that a taste cannot be registered as a trademark. While India has not seen any application of taste marks, the US and the EU have rejected applications, citing the following reasons:

• Functionality – taste itself acts as a function of the product and is therefore non-registrable as a trademark (see In re N.V. Organon, 79 USPQ2d 1639);

• Distinctiveness – a generic flavour cannot be registered, and the taste must be distinctive, acting as a source identifier (see Eli Lilly v OHIM); and

• Graphical representation – it is impossible to represent taste graphically (see Ralf Sieckmann v Deutsches Patent-und Markenamt).

However, after an arduous session of reading and research, it would not be out of place to suggest that taste may not be the only functional aspect of a food (where ‘food’ is construed as edibles, gastronomical or culinary items, and related products). Taste can be distinctive and act as a source identifier, and it is possible to graphically represent a taste. This article will elaborate on these three aspects.

Taste is a multi-attribute sensation (see An Evolutionary Perspective on Food and Human Taste by Paul A S Breslin) and the concept of taste is more complex than it appears. It extends beyond the basic sensory receptors and is influenced not only by texture and temperature but also surrounding factors such as the mood of the individual consuming the food.

It would be incorrect to conclude that taste is the primary function of food.

The primary function of food has been to support energy, growth, health, immunity, and nutrition, which can be obtained from basic, bland, and tasteless food. The secondary function of food may be promoting cultural and social identity.

The art actually lies in preparing the food in such a fashion and with a culinary intellect that adds a unique taste to it, thereby separating us from the Stone Age. Yuval Noah Harari, the Israeli historian and writer, argues that the ability to cook transformed the human diet and human development. He postulates that a ‘taste preference’ is not universal but an interplay of ancient techniques, cooking, and global cultural exchanges. Take the Maillard reaction, which is a chemical process between amino acids and reducing sugar that is initiated by heat, thereby creating a rich, umami flavour.

This brings us to the argument that taste is not the primary utility of food. The primary utility of any product makes the product functional, according to the Indian Designs Act, 2000. The primary utility of food is nutrition and health, as stated above, and not taste, because the food will perform its primary function irrespective of the taste. However, the taste may add appeal to the product, just like a brand.

There are foods that are ‘functional’ and offer benefits beyond the basic nutrition required – for example, nuts, fruits, probiotics, and flaxseeds – where taste is insignificant.

Taste can enhance the basic experience of consuming food and may also have a psychological effect and emotional satisfaction, but is taste per se functional? The answer is a plain no.

A research paper titled “Against gustotopic representation in the human brain: There is no Cartesian Restaurant” by Jason A Avery states that distinct tastes activate distinct cortical locations in the brain’s gustatory cortex that are composed of neurons specifically tuned to a particular taste. This is also known as “gustotopic organization” (this refers to the topographic map in the brain’s primary taste cortex (insula) where each of the five basic tastes – sweet, bitter, sour, salty, and umami – is represented in its own segregated cortical field).

Each individual’s cortex responds to a specific taste in a specific manner, so a taste of wine, cheese, chocolate, or coffee can be distinct, and purchasers may prefer one taste over another solely because of its distinct taste.

One of the most liked and sold sharbats (a sweet cordial) in India is Hamdard’s Rooh Afza. There are a number of other sharbat brands that appear to be identically red in colour and of a similar texture, but Rooh Afza is the most preferred because its taste is unique and can easily act as a single source identifier of the product, on account of having acquired a secondary meaning.

Taste in isolation, even in the absence of any brand label, (i) is an identification marker, (ii) can easily act as a single source identifier of the product, and (iii) has the potential to acquire a secondary meaning. Certain consumers prefer one cola over another for the same reason, even when engaged in a blind tasting of the two drinks. This may be due to memory or nostalgia, which forms part of our consciousness.

Readers should be mindful that the term ‘taste’ is not to be viewed as a feature of the product itself; rather, it is an identification marker of a single source origin of any food and may be sufficient for a consumer to make a choice. The difference is thin but striking.

Just like a brand, preference may vary from individual to individual, and not every individual has a consistent taste preference. This shows that taste can be distinct and can identify a product.

A taste preference may be positive or negative, and both are the result of possible identification and association with a particular taste or a similar taste. An experiment conducted by John Garcia in the 1960s elaborates on this.

Garcia conducted conditioned taste aversion experiments where organisms learn or acquire an aversion to the taste of a particular food with which they had an aversive stimulus; in simpler words, avoiding a particular taste that caused them to be nauseous in the past. This is also known as the ‘Garcia effect’ or ‘Sauce-Béarnaise syndrome’.

It is important to point out that the distinct terroir also influences the taste of a food. This unique terroir may be created by environmental factors such as altitude, climate, soil composition, and/or topography, as well as cultural factors such as traditional knowledge/practice and taste preferences in the region. Products such as wine, whisky, scotch, cheese, chilies, saffron, and bread have a unique taste, because of their distinct terroir, leading to an identifiable flavour.

It is therefore argued that like a traditional trademark, a taste can be descriptive, generic, or unique and arbitrary, making it one of the kinds of taste that consumers can experience.

The question of how to taste before purchasing may be left for a later stage; at present, it is imperative to understand that taste can be a source identifier of a product, and thereby has the potential to acquire a secondary meaning.

Surprisingly, graphical representations of taste and aroma date back to the 1950s, when the first representation of taste was carried out, in the form of a flavour wheel by the Arthur D. Little company. This was the original descriptive sensory technique.

The social sciences writer Sujata Gupta states in “One Man’s Quest To Reinvent The Wheel — The Flavor Wheel, That Is” that flavour wheels stem from lexicons, which are carefully and scientifically selected words used to describe food, wine, and other products, providing industry insiders with a shared vocabulary to discuss them with precision.

In this wheel, key attributes such as fruity, spicy, and sweet are used as the main colours on a rainbow, with subcategories – for example, the hint of any other flavour – in non-dominant colours. Thereby, the wheel represented the entire spectrum of flavour as a spectrum of colour.

This representation of taste in a flavour wheel was followed by the Beer Flavour Wheel of Dr Morten C Meilgaard in 1978. As per the original paper written by Dr Meilgaard in September 1978, the system consists of 14 classes, which are given general names to indicate the types of flavours.

Though Dr Meilgaard clarified in his paper that the wheel is meant as a memory aid and not as a new system of classification of odours and tastes, the system was based on the principle that “[f]lavour is a complex phenomenon, and the system must contain enough terms to enable an expert taster to describe what he finds.” This makes it one of the first graphical representations of taste.

The Beer Flavour Wheel was followed by Dr Ann C Nobel’s Wine Aroma Wheel in 1984, which created a precise vocabulary to describe wine aromas. On her website, Dr Nobel describes the wheel as 83 aroma descriptors, organised in three tiers of circles. The inner circle categorises 11 general aromas, the middle circle contains 25 subcategories of aromas, while the outer circle categorises the precise aroma.

In 1995, Ted Lingle – the inventor of ‘coffee cupping’, the traditional means for professional coffee tasters to evaluate coffee beans – invented the Coffee Flavor Wheel, which was used to represent aromas and tastes of coffees.

Another form of graphical representation of taste is the use of a spider plot, which has been successfully used to represent the taste and aroma of wine, chocolates, and coffee.

A spider plot is a circular, two-dimensional, multi-axis chart that can represent specific tastes such as sweet, bitter, umami, saltiness, and sour, and assign a numeral value to identify the intensity of each attribute.

A representation of coffee taste is provided below.

A representation of chocolate taste is provided below.

Apropos the above discussion, it cannot be concluded that a taste can be registered as a trademark, but the issues that prevent that need to be revisited, not just from a legal point of view but also from a scientific and factual point of view.

In India, Section 2(m) of the Trade Marks Act, 1999 defines a mark as including “a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof”, thereby making it inclusive and providing legal support for taste and smell marks.

Meanwhile, Section 2(zb) defines a trademark as “a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others”.

From the above reference, it can be seen that graphical representations of taste are not entirely unknown, and there still exists a possibility that the taste of a product/food can distinguish one item from another. We just need to talk more about it.

With changing times and the advent of new technology, even a digital representation of taste and smell may be possible in the near future. Innovation will continue, and protecting the innovators should be the primary aim of intellectual property rights laws. It is no longer a moot point that innovation and advancement can occur in the field of taste and smell, and not all representations of a mark need to be ocular; some may be olfactory, and others can be taste.