Orange Flavor Is No Trademark

Even a quick search of the Internet discloses the public’s love of orange. In addition to the citrus fruit itself, manufacturers use orange to flavor a wide variety of products: orange candies, orange chicken, orange vodka, even, um, orange laxatives. Moreover, as any preadolescent will confirm, “orange” forms the setup for many “knock-knock” jokes. By any measure, orange functions as a daily part of our lives. In a recent holding by the Trademark Trial and Appeal Board, In re N.V. Organon, 79 U.S.P.Q.2d (BNA) 1639 (TTAB 2006), the board refused to register an “orange flavor” as a trademark for antidepressant medication in tablet and pill form, concluding that orange flavoring performs such a functional part of our lives that it could never function as a trademark.

Companies have conditioned the public to routinely view words, letters and numbers as trademarks. “Nike,” “7 Up,” “IBM” and “Microsoft” have become an ingrained part of our consumer lexicon and perform the source identification function required of all trademarks. “Nontraditional” trademarks, however, perform exactly the same function. Consumers ask for the “pink” fiberglass insulation at the “orange” home improvement store. While at home watching the lion roar in the trailer to a DVD, a woman can enjoy a cola from the company with the contoured bottle, or perhaps on a Friday night after a tough week at work, a martini made with the vodka poured from the much advertised bottle from Sweden.