UnIntellectual Property (UnIP): Trademark for Flavor and Smell of Peppermint

The Trademark Trial and Appeal Board (TTAB) affirmed the USPTO Examining Attorney’s refusal to register a pharmaceutical company’s attempt to to register two separate trademarks for “the distinctive flavor of peppermint” and “a peppermint scent” in connection with “medicines, namely, pharmaceutical formulations of nitroglycerin.”  The TTAB considered the use of peppermint oil as an ingredient in angina spray.  Put simply, the TTAB affirmed the refusals to register the marks on the grounds that they were functional and they fail to function as a mark.

In particular, as it relates to the refusal on the grounds that the flavor and scent of peppermint were functional, the TTAB focused upon third party patents that publicly disclosed that peppermint oil increases the absorption rate of nitroglycerin into the body so as to reduce the dosage required and side effects.  As it has done so many times, the TTAB focused upon the competitive disadvantage to other pharmaceutical companies who would not be able to produce a similar product.

As it relates to the refusal on the grounds that the flavor and scent of peppermint fail to function as a trademark, the TTAB summarized its opinion by noting that consumers would consider the flavor and scent to be an “attribute” of the product rather than an “indicator of the source.”  Put another way, the applicant had failed to carry its burden of establishing the flavor or scent had the requisite secondary meaning.

The decisions seems sound.  While, from a policy perspective, allowing one party to monopolize flavors or scents could deprive competitors and the public from certain uses, it is not out of the question that such flavors and scents can be attributable to one source, and thus function as a trademark.  As always, trademark matters involving non-traditional trademarks are always fact specific, and this decision is yet another example of exactly that.

In Re Pohl-Boskamp Gmbh & Co. Kg, 85007428, 2013 WL 1278490 (Trademark Tr. & App. Bd. Feb. 25, 2013).


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