In re N.V. Organon (Serial Number 76467774), the TTAB affirmed the refusal to register an orange flavor for pharmaceuticals and set the bar very high for any future attempts to register a flavor, providing that "any registration of a flavor requires a substantial showing of acquired distinctiveness."
This Board first concluded that orange flavor was functional since flavors are a standard addition to pharmaceutical products to increase palatability and patient compliance. The board next noted that this particular flavor is unable to function as a trademark because it is likely to be considered merely "another feature of the medication, making it palatable" and not an indicator of source. Moreover, practical difficulties would arise in examination and from the fact that consumers generally have no access to a flavor before purchasing a product.
Vol. 53, June 2010