Trademarking flavored makeup could be a goldmine, lawyer hints

Fragrances and flavors in makeup often complement a product’s central function, and trademarks to-date have been issued for brand identifying marks that resonate with nearly all five senses.

Several brands already market flavoured lip products, including the distinctively packaged eos product line. That company’s Smooth Sphere Lip Balm comes in nine taste combinations, from Vanilla Mint and Coconut Milk to Lemon Drop and Summer Fruit. And the MAC Nocturnals collection​ includes a mini tinted flavored lip conditioner kit.

Sight, sound, scent and touch​
Cosmetics and personal care product advertising and marketing appeal to the five senses. And the United States Patent and Trademark Office, an agency of the Department of Commerce, has issued trademarks for identifying sight, sound, scent, and touch attributes—but not for taste, yet.

Visible brand identifiers are common. “Although word and design marks are the most traditional and recognizable types of trademarks, nontraditional trademarks that target the other senses do exist, and can provide valuable brand identification,”​ wrote Jackson, who works an associate in the Intellectual Property group at the Lewis Roca Rothgerber firm, in his recent post on lexology.com​.

Fun examples Jackson points to include, sounds like Darth Vader’s breath and the laugh of the Jolly Green Giant, scents including floral sewing thread and peppermint office supplies, and tactile braille jewelry. (Jackson’s remarks do not pertain to any particular industry but are instead about trademarks and branding in general.)

Inedible ​
“Attempts have been made to trademark a flavor, but so far the USPTO has refused all such attempts on the ground of functionality,” ​explained Jackson.  ​

And, it is not entirely clear if the USPTO would consider the taste of makeup products functional; though a layman might easily presume that taste is incidental to product function.

An oft quoted stat sets the amount of lipstick women incidentally eat over a lifetime at 6 pounds. Alexandra Tunell, writing for the popular magazine Cosmopolitan, looked into this and other beauty myths​.  Starting with the understanding that an "average lipstick ingestion amount is 24 milligrams [and] a lifetime is 70 years… you get 613.2 grams of lipstick ingested over a lifetime — or 1.35 pounds"​ according cosmetic chemist Ni'Kita Wilson, an expert Tunell consulted for the article.

An imaginative business ​
“International cosmetics packaging manufacturers design lipstick tubes that help brands offer consumers more pleasurable and memorable beauty routines,”​ Cosmetics Design observed in a recent article on novel lipstick packs​.

This same sort of go-to brand identity could come with a thoughtfully incorporated flavor.  Plus there is notoriety at stake:  “No doubt the first company to successfully trademark a unique flavor will garner immediate publicity for its product!” ​Jackson concludes.