Flavour of the month

Hard cheese for soft cheese maker, as European Court of Justice (CJEU) rules that the taste of foodstuffs cannot be protected by Copyright law

In a 13 November preliminary ruling, which in some ways probably surprised relatively few observers outside of the Netherlands, the CJEU ruled that the taste of a food product cannot be protected as a copyright work.

The case came before the Court following a reference from the local courts in the Netherlands, where Levola Hengelo was pursuing a case against Smilde Foods claiming that the flavour of the latter’s spreadable cream-cheese dip infringed Levola’s rights by imitating the taste of its own equivalent product.

The Claimant was seeking to rely by analogy on a 2006 decision of the Supreme Court of the Netherlands which had suggested that in principle the scent of a perfume could benefit from copyright protection and therefore (they argued) so could the taste of a food product.

However, the reference made to the CJEU noted that the Supreme national court of France (Cour de Cassation) had categorically rejected the notion that a scent could be the subject of copyright protection.

The CJEU held that for the taste of a food product to benefit from copyright protection, it would have to be a “work” attributable to the intellectual creation of its “author” or creator and would have to “be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form.” One of the key factors in the Court’s mind was that of ensuring legal certainty and eliminating so far as possible any element of subjectivity from a question of copyright infringement.

The Court found that a product’s flavour failed this test, noting in its ruling that;

“The taste of a food product cannot…be pinned down with precision and objectivity. Unlike, for example, a literary, pictorial, cinematographic or musical work, which is a precise and objective form of expression, the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable since they depend, inter alia, on factors particular to the person tasting the product concerned, such as age, food preferences and consumption habits, as well as on the environment or context in which the product is consumed.”

The Court also noted that “it is not possible in the current state of scientific development to achieve by technical means a precise and objective identification of the taste of a food product which enables it to be distinguished from the taste of other products of the same kind.”

In addition the Court noted the requirement for a uniform definition of the legal understanding of a “work” throughout the EU, with no scope for national courts or legislators to take a differing interpretation, and so this looks like the end of the road for food flavour copyright claims and, quite possibly, also for any future attempts to secure such protection for perfume scents - although the Court leaves open the tantalising possibility that should technology advance sufficiently that a flavour or scent can be entirely objectively analysed and compared, then a different outcome may have resulted.

Trade Mark protection was not in issue here, but it seems highly unlikely (for similar reasons) that any Examiner would be prepared to grant trade mark protection to a flavour. Imminent changes to the UK’s trade mark laws, originating with European regulations (see earlier article “The EUTM Regulations, they are a-changing”) mean that it will no longer be necessary for a mark to be “capable of being represented graphically” but will still have to be “clear, precise, self-contained, easily accessible, intelligible, durable and [crucially!] objective.”

It therefore remains very difficult for food manufacturers to use Intellectual Property Rights to protect new recipes and food products. The recipe itself (as expressed on the page or the screen) will almost certainly be capable of being protected as a literary work, and in some extreme cases of novelty and inventiveness it may even be possible to pursue a patent application for the chemical processes of the recipe itself, or for some part of its production - but this will be by far the exception rather than the rule.

In the meantime, the doctrines of confidentiality and trade secrets remain probably the best tools in the food manufacturer’s armoury for keeping the “crown jewels” of their new flavours under wraps.

Posted on: 03/12/2018

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

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