In a recent decision out of the District Court for the Southern District of Texas, the federal court wrestled with the protectibility of food flavoring and plating as restaurant source identifiers.

In N.Y. Pizzeria, Inc. v. Syal, the Plaintiff NYPI, an Italian restaurant chain, claimed that defendant, a former franchisee, violated its intellectual property rights by using the same recipes/flavors and style of plating in its knock-off establishment used by the original chain. 2014 U.S. Dist. LEXIS 143433 (S.D. Tex. Oct. 8, 2014). NYPI based its claim, in part, on defendant’s alleged theft of its trade secrets in the form of both recipes and plating guidelines for certain dishes.

In evaluating these novel claims, the district court wrestled with the concepts of functionality of flavor relative to food offerings, and NYPI’s failure to describe its “plating guidelines” or plating trade dress elements with any particularity. Noting that a “flavor” relative to food can never be inherently distinctive and thus could only be protectable in the face of evidence that it had acquired distinctiveness (namely, that the flavor alone distinguished the source of the product and customers associated that flavor with the source) the court emphasized that even in such case, because flavor affects the quality of food, it would likely always be found to be a functional and unprotectible element. The court relied on the TTAB’s decision in In re N.V. Organon finding that the pharmaceutical company’s orange flavor used to mask the disagreeable taste of its pills performed “a utilitarian function that [could not] be monopolized without hindering competition in the pharmaceutical trade. 79 U.S.P.Q. 2d 1639, *13. Because the flavors of pasta and pizza have a functional purpose, the Texas district court dismissed NYPI’s misappropriation and trademark infringement claims relative to its competitor’s food flavoring.

While recognizing that in some rare cases the plating of food could be so unique or distinctive as to be capable of trade-dress protection, the court emphasized that in this case, NYPI’s failure to articulate the distinctive elements of their plating of ziti, chicken, and eggplant parmesan justified dismissal of NYPI’s trade-dress infringement claim.