On June 17th of 2025, a swath of significant amendments to Canada’s Trademarks Act entered into force, quite literally going as far as to change the definition a trademark. Out was any reference to a distinguishing guise, and in was a definition of Trademark including “a sign or combination of signs that is used or proposed to be used by a person for the purpose of distinguishing or so as to distinguish their goods or services from those of others”. This amendment is particularly significant, as the definition of “sign” within section 2 of the Trademarks Act references several categories, including a number of categories referred to as “non-traditional trademarks” such as holograms sounds, smells, and tastes, among others. Upon mention of this in lecture, I immediately found myself fascinated by the potential implications of a taste mark. Could a company like Coca-Cola trademark the flavour of their namesake beverage to protect against infringement of taste in the event a competitor perfectly replicates their exact species of cola flavour? What are the practical implications of allowing taste marks to be trademarked? At least so far, the answer appears to be… not much.
Five-and-a-half years after the federal government opened the doors to trademarks of taste, this area of intellectual property law appears to be completely fruitless, though not for lack of effort by trademark applicants. A search of the Canadian Intellectual Property Office’s (CIPO’s) Canadian Trademarks Database, filtering all marks in the category of taste by registered status reveals that to date, not a single trademark for taste has been granted in Canada. Expanding this same search to include any application status yields a more interesting result, with 124 applications for taste trademarks, active or inactive. Of these 124 applications, 88 have been deemed abandoned applications and therefore closed under section 36 of the Trademarks Act, where the applicant has failed to respond to a notice from the Registrar. In many cases here, this appears to have occurred where the Registrar has completed a first examination, been dissatisfied with the application’s eligibility to be registered, requested either a counter-statement or an amendment of the application to address the invalidity, and where the applicant has failed to provide such.
Results among the active applications do not appear much more promising. Many of these applications do not appear to be for taste trademarks at all, and appear to have mistakenly been applied for in the taste category simply because the relevant goods or services fall into food, beverage, or culinary industries. One such example is Application 2313480 where, as the Registrar noted in the Examiner’s First Report, the application details seem to imply that the true intention of the applicant was to apply for a standard character trademark of the business name “Shandiz Restaurant LTD” but mistakenly selected the taste trademark category due to the culinary nature of the business. Other applications, such as Application 2253561, appear to have been filed as taste trademark applications for no explainable reason whatsoever. This particular example seems to have been intended not as a taste trademark, but as a design trademark for a logo representing a women’s fashion and accessory brand known as Lumzee.
It is also important to note that under section 31(e) of the Trademarks Regulations, where taste is claimed as a feature of a trademark, this will not be granted by application reference to the good itself, but rather the application must explicitly state and describe the taste being sought as a trademark. This again appears to have been missed by a number of applications, such as Application 2185411. Here, an applicant on behalf of their business MCA Enterprises Ltd has sought a taste trademark for a good described as “a drink that replaces coffee.” Ignoring other issues regarding this trademark application, it is entirely possible that the applicant is truly seeking a taste trademark, having referenced a specific beverage. However, by only referring to the beverage instead of describing its taste, it is unclear whether the applicant seeks a taste trademark for the flavour of the beverage, or a standard character trademark of the brand name, an issue again referenced by the Registrar in the Examiner’s First Report.
Perhaps unsurprisingly, each of the applications references or cited as an example above was filed by an independent applicant without that assistance of a lawyer or trademark agent, and maybe the lesson to take away from all of this is the importance of proper legal counsel and advice. However, after browsing dozens of independent applications, I came across Application 1975865, the first application which I noticed was completed with the assistance of a Trademark Agent, in this case from Gowling WLG Canada LLP. Coincidentally, this appeared to be the first taste trademark application that appears to have been completed properly. Here, a company known as Energy Tap Inc. sought to trademark a specific flavour used in the production of several of its goods including energy bars, energy gels, and electrolyte drinks. The application properly described the trademark sought as “the taste of salted maple syrup with ginger.” Ultimately however, the registrar found and stated in the Examiner’s First Report that the described taste lacked sufficient distinctiveness to be registered as a trademark under section 32(1)(d) of the Trademarks Act. Energy Tap and Gowling are accorded the opportunity to file a response, and have since received numerous extensions on the deadline for this response in order to compile evidence that the trademark has since acquired sufficient distinctiveness to be registered before the application is deemed abandoned under section 36.
Distinctiveness in trademark is a high bar, especially so in cases of non-traditional trademarks. Recalling the in-class example of Crayola’s attempt at registering a scent trademark in the “unique scent of pungent, aldehydic fragrance combined with the faint scent of a hydrocarbon wax and an earthy clay” associated with their crayons (Application 1986544), the Registrar similarly suggested a lack of sufficient distinctiveness in the Examiner’s First Report. Following Crayola’s submission of extensive evidence suggesting consumer association between the scent and Crayola in response, the Registrar re-asserted insufficient distinctiveness, citing the Philip Morris Incorporated v. Imperial Tobacco Ltd. distinctiveness test and the triple requirement for (1) association between the mark and product, (2) “use” of this association by the owner in the manufacturing and sale of his wares, and (3) that the association enables the owner to distinguish his product from that of others. Despite the application having been received in mid-2019, shortly after the amendment to the Trademark Act, Crayola has continued to respond with further assertions of distinctiveness. In the most recent action, filed December 16th of 2025, the Registrar made a third assertion of insufficient distinctiveness for registration, suggesting that Crayola’s evidence of distinctiveness always involves the scent trademark being used in association with other indications of source, such as plain character or design trademarks of CRAYOLA. The registrar’s notes state that the scent trademark, to be registered, must be so distinctive that an average Canadian consumer would readily identify the scent as an indication of the source of the crayons in the absence of any other indication of source, while Crayola’s evidence suggests Canadians perceive the scent as a feature of otherwise Crayola-branded crayons, and not an indicator of course.
The Crayola application demonstrates the incredibly high bar that a non-traditional trademark, including a taste trademark must overcome to be registered. Not only must the taste be capable of concise description, but the described taste must be sufficiently distinctive to the extent that an average Canadian consumer would associate the taste with the product, that the applicant uses this association in manufacture and sale, and perhaps most challengingly, that the average Canadian consumer would readily identify the taste as an indication of the source without any other indicators. It certainly seems unlikely that any amount of evidence put forward by Energy Tap will be sufficient to suggest that an average Canadian Consumer would associate the taste of “salted maple syrup with ginger” as an indication of source for their brand of fitness snacks in particular. That’s not to say it would be impossible, but given the failure of any applicant to register a non-traditional trademark in scent or taste in the 5.5 years since this became theoretically possible, I would be surprised to see one succeed anytime soon.
DISCLAIMER: All information regarding specific trademark applications came from the CIPO Canadian Trademarks Database. Generative AI (ChatGPT powered by GPT-5) was used to create the featured image.
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