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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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Canada has been described as a functional food  because of our academic expertise, raw agricultural materials, and proximity to the US.  In fact, Osgoode’s home base recently topped a number of globally innovative cities with the USPTO.

Given the patent system’s supposed ability to , should we look to patents to drive R&D to create healthier foods?

Functional Food Patents

Functional food inventions can be if they fall under patentable subject matter and are new, non-obvious, and useful. The discovery of a functional food that already exists in nature will not be patentable (e.g. pomegranates). Also, blueberries may not pass the innovative mustard. Higher life forms, for example a, are barred from patenting while have squeaked through.  Examples of functional food patents that have met the legal requirements include a of preparing probiotic cereal flour and fish proteins.

Overall, it appears that functional food patents are a relatively market.  Considering their potential, why are inventors only starting to focus on functional food patents in Canada?

Patent Claims vs. Health Claims:

To redeem the significant financial investment required to obtain a patent, intellectual property owners often look for a market to sell or licence their invention. In Canada, functional foods are regulated under the  as either a (NHP).

Depending on the food or NHP categorization, functional foods will be subject to different for safety, labelling, advertising, and post-market surveillance. Both regulatory regimes what can be said about health on labels and other promotional materials and bar false and misleading claims.

In addition, new functional foods (and ingredients) must go through a government approval process for safety and a separate process for new health claim approval. The food and NHP (to a lesser extent) regulatory environments may prevent or severely limit IP owner’s ability to tell customers about health benefits.  Ultimately, this may represent a and could factor into the cost/benefit ratio for investing in R & D and the patent process.

Ethical Eating?

Patenting food cooks up similar ethical and moral pressure points as patenting pharmaceuticals and biotechnology, such as increased costs, barriers to life saving treatment, and bio-piracy.

Obesity and chronic disease are now a global problem that affect medium to low income countries. Higher food costs related to patents could increase food insecurity and inhibit further economic development in poorer countries burdened by healthcare costs.

Fruit, Vegetables, and Whole Grains Already Exist!

Unlike infectious diseases, we can often obesity and chronic diseases by eating a healthier diet, exercising, and reducing stress. Why do we need more innovative foods when the old ones still work and are pretty cheap? Furthermore, patenting foods may go against the grain of and other local, organic, and simple ingredient food movements.

Safety and Health Washing:

The recent recall demonstrates the importance of safe food. While our food regulatory system may be cumbersome, there is likely a strong rationale for safety precautions and scientific and administrative barriers. In addition, allowing generally unhealthy food (high in salt, sugar, or fat) to carry health claims related to patents could open a whole new can of sour worms!

Wherever you stand on patenting as a means of driving R & D investment into healthier food, it is something we need to continue to explore. If Canada is truly a functional food powerhouse, we may be missing opportunities to improve our health, grow our economy, and create jobs. On the other hand, the patent system may be the wrong tool and could have negative health, economic, and ethical consequences.  Either way, hopefully others will continue to chew and digest on the potential use of the patent system to stimulate R & D into healthier food.

Amanda MacNaughton is a JD candidate at Osgoode Hall Law School and is currently enrolled in Osgoode’s Intellectual Property Law and Technology Intensive Program.  As part of the program requirements, students are asked to write a blog on a topic of their choice.

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Food enthusiasts and artisan producers around the world know how important terroir is for a range of foods from cheese to wine to smoked meat. Flavour, nutritional content, and shelf life of products can all be affected by terroir - a set of location-specific characteristics given to food and beverages by the geographical and climate conditions, and traditional preparation practices particular to a place.

The World Trade Organization gave the concept legal life when it embodied terroir under the category of geographical indications (GIs). Encompassing all sorts of geographically specific products, GIs have mostly been used for food, and most prominently for wine and spirits, which enjoy "additional protection" under the Agreement on Trade-Related Aspects of Intellectual Property Rights.

Under the Geographical Indications for Wines and Spirits registered with the Canadian Intellectual Property Office, one can find 28 regional designations coast to coast. Overseen by the industry's self-regulating body, the Vintners Quality Alliance (VQA), these designations are intended to preserve the terroir of wine by not only requiring that at least 85% of grape juice in a batch of wine comes from the designated area, but also by taste-testing wine samples to ensure that each variety indeed preserves the "varietal characteristics" of that particular grape. As with GIs the world over, these designations promote our romanticized notions that the wine not only comes from local grapes but is also imbued by cultural traditions involved in its making. Meanwhile, the vineyards in southwestern Ontario show that grapes in the Lake Erie North Shore and Pelee Island regions (both listed under those 28 Canadian designations) are more often than not grown and picked by migrant workers, a segment of the 17 000 seasonal work force that comes to Ontario every year, mostly from Mexico and the Caribbean. They are employed by wineries (along with greenhouses and tomato field operations), which cannot recruit local workers to do the backbreaking work that pays little if anything above minimum wage.

While the seasonal worker program is overseen by Service Canada, which ensures that workers are properly compensated, protected and insured, one has to wonder about a slew of global inequalities implied by the fact that Mexican and Jamaican workers are here to do the work nobody local will do. Even when accommodations, plane tickets and work permit costs are taken into account, migrant labourers make financial sense. A testimony to Canadian assumptions of cheap food (see note below), this is merely another side of outsourcing, but one legitimized by GI designations that still give products the noble status of 'local.' 

Across the Atlantic Ocean, where notions of both terroir and GIs originated, there is much resemblance. The hardest labour in Italian, French and German vineyards, creameries and ham production facilities is often done by migrant workers. Most of the labourers in France and Italy come from North Africa, and those in Germany from Turkey and Eastern Europe. The legacy of colonial history remains stark in the European Union, and this migrant labour force is arguably the most important blind spot of GIs.

Meanwhile, the smallest of wine, cheese, and ham producers in Europe who actually do imbue their food with cultural continuity, are often too overwhelmed by the bureaucratic processes and the costs involved to even bother registering their products. Similarly, some of the smallest wineries in southwestern Ontario cannot afford to pay the fees required for VQA testing as their batches are small and only sold in their production facilities. While their wines are bestowed with as much terroir as that VQA bottle in the liquor store, they are left out of the GI club.

GIs, though ostensibly conceived as way to protect taste and cultural traditions in one stroke, have done nothing for the labour behind those fine but often privileged concepts. All labels mediate and as such have the ability to frame issues in very particular ways. They can also make us blind to issues of social justice and inequalities hidden behind a designation stamp. There is no official designation for a block of cheese that can replace the face of a dairy farmer at a local market. A visit to a regional winery can give consumers a much better sense of what it is they are purchasing, than any kind of label ever could. Those face-to-face interactions speak volumes, whether the producers are local or migrant. No amount of regulation, standardization and labelling can replace personal connections to our food and its producers. Ultimately, that is what terroir is all about - the whole of the food experience, gustative and cultural. GIs on the other hand are about protecting commercial rights and that puts them miles away from both culture and labour justice.

(Canadians spend less than 10% of their income on food. This compares to over 10% for the industrialized European countries and Australia, and up to 30% or 40% for many Eastern European and Asian countries, while data for most non-industrialized countries is not even available. USDA Economic Research Service, 2007, ).

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