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Emily Xiang is an IPilogue Writer, the President of the Intellectual Property Society of Osgoode (IPSO), and a 2L JD candidate at Osgoode Hall Law School.

So far, intellectual property law has protected some pretty wild things – biological , football turfs, even methods for building the . But, is it possible to protect an experience? In June 2019, major amendments to Canada’s (RSC 1985 c T-13) came into force, including the protection of non-traditional trademarks consisting, in whole or in part, of sounds, holograms, moving images, scents, tastes, colours, three-dimensional shapes, modes of packaging goods, textures, and positioning of signs. This legislative addition is critical when assessing how businesses and marketers may potentially protect multisensory experiences (MSEs). However, certain barriers arise in applying traditional intellectual property principles to such sui generis subject matters. Let’s take a look at some examples.

Sonic Seasoning: Combining Music with Flavour

refers to the multisensory phenomenon that occurs when the sounds that one hears have a psychological effect on one’s taste perception. Since this discovery, in the food and beverage industry have sought to carve out a unique space in the marketplace for food and sound pairings, making the combination itself the centrepiece for more extensive marketing campaigns invoking a particular “atmosphere” or “experience.” For instance, in 2020, published an audio content series that illustrated six of their cheeses using specifically curated sounds. Beer companies like have also embarked on projects to provide consumers with “” drinking experiences through packaging design, music, taste, and photography.[1]

While the amendments to the Trademarks Act now protect and separately, brand owners should be aware that applications for such marks require that the taste or sound meet the prescribed standards of distinctiveness and non-functionality. On distinctiveness, evidence would need to be submitted to demonstrate that the brand’s reputation of the mark in question is sufficient to trump another primary meaning that a member of the public might attribute to the taste or sound. The non-functionality standard may also cause issues for applicants seeking trademark protection for tastes since the primary purpose of foods and beverages is to provide or impart flavour.

that mark owners seeking trademark protection for MSEs should instead apply for “” protection, a “distinguishing guise” or “a mode of wrapping or packaging wares.” While the applicant would still need to show distinctiveness and non-functionality, trade dress protection seems to most adequately address the overall “concept” or “feel” of a product, so long as the features are source-identifying.

Trademarking the “Consumer In-Store Experience”

Auditory cues can pair with other sensory tools to market products and services. Research into has shown that such factors as lighting, flooring, music, decor, and even fragrance play a role in driving consumer experience and behaviour. In his book In Pursuit of Silence: Listening for Meaning in a World of Noise, George Prochnik discusses the soundscapes developed by Abercrombie & Fitch, in which “loud music and spotlit darkness [are used to] introduce a state of celebratory arousal. Indeed, if you walk around your local branch of Abercrombie & Fitch, you may feel that there would be something downright frigid in considering your purchase too closely.” are increasingly used by to conjure particular consumer experiences, whether it be in retail stores, car showrooms, sports stadiums, airports, banks, or apartment buildings. For instance, infuses the air of its luxurious line of “Park Hyatt” hotels with a signature fragrance in the hopes of creating an association in the minds of its customers between the scent and the level of luxury at the Park Hyatt.

In 2013, successfully applied for intellectual property protection of the design and layout of its signature retail store. The USPTO granted the tech giant an arguably broad trademark that covered various features of the space, including clear glass storefront surrounded by a paneled facade, rectangular recessed lighting units covering the ceiling, and rectangular tables arranged in lines covering the floor space. Such details can make up one’s entire ‘’ of an Apple store, thereby qualifying for MSE trademark protection. 

Conclusion

As the scope of intellectual property law continues to expand, questions arise as to how existing IP regimes can potentially respond to increasingly amorphous and novel subject matter. The inclusion of non-traditional marks in Canadian trademark legislation represents an opportunity for mark owners to protect subtle elements of their brands. It is an area of the law we should keep a close eye on in years to come.

[1] Mark Edward Blankenship Jr., “With Eyes to See and Ears to Beer: Navigating Multisensory Intellectual Property Rights in The Craft Beer Industry”, (2021) 21:4 Wake For Intellect Prop Law J 397.

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Labatt claims that even The Beer Store employees are as an unspecified number of Red Baron empties have apparently been sent to Labatt's Brava bottle plant to be refilled. George Croft, president and chief executive of Brick Brewing, , largely because The Beer Store is partially owned by Labatt, but also because Brick pays the store a "sorting" fee to ensure its bottles are property returned. In mid-June, this lawsuit was settled "" and under the agreement, Brick must change Red Baron's in the near future.

Although that disagreement may be settled, just last week, Labatt and Brick Brewing geared up for another round of litigation. The lawsuit was once again launched by Labatt, this time claiming that Brick's Red Baron Lime beer of Labatt-owned Bud Light Lime. This time, Brick has apparently that they launched their lime beer as a copy of Bud Light Lime after noticing that stores quickly sold out of Labatt's product. Brick decided to capitalize on the opportunity this created, and rushed their launch of Red Baron lime in order to meet the demand for lime beer that was created by Bud Light Lime. Both Brick's and Labatt's version of the lime beer are sold in clear bottles with green and silver labels featuring a slice of lime, and this time, attention is also being drawn to the websites of and lime beer, which both use green backgrounds and depict young, attractive, swimsuit-clad people gathered around a bottle of the brew. Labatt claims consumers are being misled into believing Red Baron Lime and Bud Light Lime are connected, and furthermore, seeks punitive damages of $500,000 because Brick shows a "" of passing off its wares as those of other companies. Brick attempts to itself by saying that it doesn't make sense to use a lime graphic without also using the colour green.

Professor , an associate professor at Osgoode Hall, speculates that Labatt may be making an to claim ownership to a common symbol, and perceptively notes there are only so many ways to design a lime slice before it no longer looks like a lime. and , both Canadian companies, also this summer, but escaped the wrath of Labatt by using different coloured bottles and labels that are visually distinct from Bud Light Lime.

If this case does not settle, it could be years before it is resolved. Croft has stated that Labatt is "" for thinking they can trademark a lime slice or the colour green, and that Brick is "" this time, but rather to take a stand against the beer giant. At this rate, it looks like this lawsuit will not end in an amicable settlement.

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