A Texas judge ruled this week that the flavor of Russo’s New York Pizzeria’s pizza was not entitled to trademark protection. Russo’s had sued another restaurant, Gina’s Italian Kitchen, for trademark infringement, claiming it had copied the taste of its food, using its recipes, suppliers, and allegedly hacked documents.
Judge Gregg Costa dismissed the trademark and trade dress claims, calling them “half-baked.” Russo’s New York Pizzeria had claimed that its “specially sourced branded ingredients and innovative preparation and preservation techniques contribute to the distinctive flavor” of the food it serves. Judge Costa’s ruling said, “it is unlikely that flavors can ever be inherently distinctive, because they do not ‘automatically’ suggest a product’s source.” He went on write: “Functional product features are not protectable.”
Unlike flavor, Judge Costa wrote that the plating of food could be protectable under trade dress. “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.”
In case you’re not hungry after reading that, there was more pizza-related trademark news this week. The owner of New York City’s Grimaldi’s pizzeria filed suit against the owners of Patsy Grimaldi’s restaurant in Shanghai, China, which happens to feature signage similar to its Brooklyn location, along with a similar menu. Even a listing in Timeout Shanghai mentions the commonalities between the two restaurants: “Despite appearances, this restaurant is not affiliated with the New York pizzeria of the same name.”
What do you think about the court’s ruling on the trademark protection of flavors?