Texas judge…

New York Pizzeria Inc brought the case after its former president allegedly conspired to create a knock-off restaurant chain using NYPI's recipes, suppliers and internal documents.

According to NYPI, its "specially sourced branded ingredients and innovative preparation and preservation techniques contribute to the distinctive flavour" of its products and should therefore be protected by trade mark rights.

The judge admitted, in principle, almost anything capable of carrying meaning can be protected via the Lanham Act, but it has to be distinctive.

Unfortunately for the pizzeria, the judge said: "As with colours, it is unlikely that flavours can ever be inherently distinctive, because they do not 'automatically' suggest a product's source."

Costa also pointed to an earlier decision at the Trademark Trial and Appeal Board where a pharmaceutical company attempted to gain a trade mark on the orange flavour of its medicine.

"Functional product features are not protectable," he said. "If the hurdle is high for trade marks when it comes to the flavour of medicine, it is far higher - and possibly insurmountable - in the case of food. The flavour of food undoubtedly affects its quality, and is therefore a functional element of the product."

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