Trademark Issues Relating to Digitalized Flavor

By Cross, John T. | Yale Journal of Law & Technology, Annual 2017 | Go to article overview

Trademark Issues Relating to Digitalized Flavor


Cross, John T., Yale Journal of Law & Technology


Table of Contents  Introduction I. The Technology of Flavor Synthesis and Digitalization    A. Flavor and the Sense of Taste    B. Synthesizing and Digitalizing Flavor: The Current S       of the Art II. The Potential of Digitalized Flavor III. Legal Issues Involving Digital Flavors IV. Issues in Trademark Law     A. Flavor as Trademark Subject Matter        1. Inability to Sample Prior to Purchase        2. Distinctiveness and Secondary Meaning        3. Functionality     B. Borrowing "Real" Flavors for Use on Other Products        1. Federal Trademark Law        2. State Trademark and Unfair Competition Law        3. Should Borrowing be Actionable?     C. Diluting Existing Marks by Adding Flavors Conclusion 

INTRODUCTION

Were it not for the senses, humans would exist in isolated cocoons. Our five senses allow us to perceive the world around us. But, equally importantly, they also allow us to communicate those perceptions to each other. Our senses collectively constitute the medium by which living beings communicate about their world. Most human communication occurs through the senses of sight and sound. Anyone who has ever walked a dog, by contrast, can verify how the canine species relies more heavily on the sense of smell. Nevertheless, even we humans use the senses of touch, smell, and taste to both enhance and facilitate communication. The complete message we receive from face-to-face communication with others can be a nuanced mix of signals we receive through all five of our senses.

Of course, we regularly use technology such as telephones and e-mail as a tool in interpersonal communication. These technologies undoubtedly make interpersonal communication, especially at a distance, easier, quicker, and cheaper--although debate continues as to whether it is as effective. But in addition to communicating with other humans through technology, humans also need to communicate directly with technology. The complex computational, storage, and retrieval power of a computer is of little use if the human operator cannot direct the computer what to do, or the computer cannot communicate what it just did back to the human.

Our communications with technology involve a "formatting" problem. Most information technology today is digital. Human beings, however, are "analog" devices. When we communicate with our machines, we must convert our thoughts and commands into digital format. Similarly, computers convey information to humans by converting its digital information into an output recognized by one of our senses. Because humans rely heavily on their senses of sight and sound in communication, it is easy to understand why most early developments in computer interface technology focused on those two senses. (1) Early computer-to-human communication was purely visual. Moreover, that visual interaction was quite limited, as the first computer monitors displayed only monochromatic text. Within a few decades, technology evolved to allow for both sound and pictorial/graphical communication. Today, high resolution monitors and sophisticated sound chips and speakers allow for advanced sight and sound displays. The interaction now even works both ways, with iris readers, fingerprint scanners, and speech recognition technology allowing humans to communicate to our machines by means other than buttons, dials, keyboards, and the mouse.

While there have been great strides with respect to sight and sound, computer-to-human communication via the other three senses is far less developed. Admittedly, haptic input technology is becoming increasingly sophisticated, and includes modern multifunctional touchpads and touchscreens. There has also been some effort to introduce various types of haptic output, usually in the form of vibration. (2) For example, researchers at the Mixed Reality Lab have developed a system they dub the "Huggy Pajama," by which parents may transmit the sensation of a hug to their children (or anyone else) from afar. …

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