You Cannot Protect Pizza’s Flavor

In a recent ruling, a U.S. District Court in Texas ruled that the flavor of pizza cannot receive trademark protection. In the case, New York Pizzeria, Inc. (NYPI) sued the owners of Gina’s Italian Kitchen for trademark infringement and dilution among other counts.
In the suit, NYPI said that one of their former employees worked with Gina’s owners to use the same recipes and plating to create copies of their signature dishes including pizza, baked ziti and chicken and eggplant parmesan. The plaintiff alleges trademark infringement and dilution based upon two main variables: taste and plating. For the flavor argument, the plaintiff basically says that since NYPI’s recipes were used the distinct taste of their product was being used by a third party that constitutes trademark infringement and dilution.
The court ruled that the flavor of the pizza cannot be protected because flavor, like color, does not distinguish the origin of a product. It also found that since flavor is a functional element of a pizza it is also not protectable. On the grounds that the pizza and dishes could be protected based upon its plating, the judge found that it was once again a functional element because there was nothing distinguishing about the description of the dishes.
Bottom line: the flavor of the slice that you enjoy from your favorite pizza joint is not protected by the Lanham Act.
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