Federal Court Rules Texas Restaurant Can't Trademark the 'Flavor' of Its Food

A Texas-based pizza chain has lost a lawsuit it filed against a competitor, arguing that the rival chain broke trademark laws by copying the flavor of many of its dishes. According to Forbes, the owner of Russo's New York Pizzeria — which has more than 20 locations, including one in Dubai — sued the founders of Gina's Italian Kitchen, arguing that the new chain was a direct "knockoff" of Russo's. In the civil suit, plaintiff Gerado Russo claimed the founder of Gina's, a former employee, knowingly copied what Judge Gregg Costa describes as "the flavor of its Italian food and the way in which it plates its baked ziti and chicken and eggplant parmesan dishes."

But according to Judge Costa, the "flavor" and presentation of the common Italian dishes were not subject to trademark infringement laws, arguing that "the flavor of food undoubtedly affects its quality, and is therefore a functional element of the product." (Costa also works in a killer food pun, writing: "The flavor infringement claim is plainly half-baked.") Costa also dismissed the claims that Russo's plating style was protected by trademark, pointing out that the restaurant failed to prove what was "distinctive and nonfunctional" about the way it served its eggplant parmesan. (FWIW, the eggplant parm plating at Gina's looks pretty different anyhow.)