Taste of food not protected by copyright in the EU

Published onNovember 2018

The EU law precludes (i) the taste of a food product from being protected by copyright and (ii) national legislation from being interpreted in such a way that it grants copyright protection to such a taste.

The judgment of the Court of Justice of the European Union (CJEU, Grand Chamber, 13 Nov. 2018, case C-310/17, Levola Hengelo BV v Smilde Foods BV) sounds the death knell of copyright protection of recipes of any preparation or dish, whatever its originality and whatever the fame or the creativity of the chef who created it.

The culinary preparation at issue was not exceptional, namely a cream cheese dip containing fresh herbs called “Heksenkaas”.

The manufacturer of Heksenkaas, claiming to have created a copyright-protected taste of a food product hold a competitor for having infringed its copyright, referred to as the “overall impression on the sense of taste caused by the consumption of a food product, including the sensation in the mouth perceived through the sense of touch”.

Inversely, according to the potential infringer “the protection of tastes is not consistent with the copyright system, as the latter is intended purely for visual and auditory creations. Moreover, the instability of a food product and the subjective nature of the taste experience preclude the taste of a food product qualifying for copyright protection as a work. It further submits that the exclusive rights of the author of a work of intellectual property and the restrictions to which those rights are subject are, in practical terms, inapplicable in the case of tastes.”

Observing that the French Cour de Cassation had categorically rejected in 2013 the possibility of granting copyright protection to a scent (see our article Perfumes cannot be protected by copyright) and noting divergences in the case-law of the national supreme courts of the European Union on the subject, the Gerechtshof Arnhem-Leeuwarden (Regional Court of Appeal, Arnhem-Leeuwarden, Netherlands) decided to refer the following question to the Court of Justice for a preliminary ruling:

Does EU law preclude the taste of a food product – as the author’s own intellectual creation – being granted copyright protection?”

For a taste of a food product to be classified as a ‘work’, it should satisfy to two cumulative conditions as follows:

  • The subject matter must be original in the sense that it is the author’s own intellectual creation;
  • Only something which is the expression of the author’s own intellectual creation may be classified as a ‘work’.

Besides, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form (Directive 2001/29).

According to the Court, a taste cannot constitute a work in so far as it is too subjective and its expression lacks clarity and precision:

That is because, first, the authorities responsible for ensuring that the exclusive rights inherent in copyright are protected must be able to identify, clearly and precisely, the subject matter so protected. The same is true for individuals, in particular economic operators, who must be able to identify, clearly and precisely, what is the subject matter of protection which third parties, especially competitors, enjoy. Secondly, the need to ensure that there is no element of subjectivity –– given that it is detrimental to legal certainty –– in the process of identifying the protected subject matter means that the latter must be capable of being expressed in a precise and objective manner.

The taste of a food product cannot, however, 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.

Moreover, 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.

These conditions of clarity and precision are also consistent with the criteria for the validity of trademarks, in particular olfactory signs.

The CJEU had already ruled that EU law “must be interpreted as meaning that a trade mark may consist of a sign which is not in itself capable of being perceived visually, provided that it can be represented graphically, particularly by means of images, lines or characters, and that the representation is clear, precise, self-contained, easily accessible, intelligible, durable and objective” before considering that “ in respect of an olfactory sign, the requirements of graphic representability are not satisfied by a chemical formula, by a description in written words, by the deposit of an odour sample or by a combination of those elements” (CJEU, 12 Dec. 2002, Case C-273/00 – Sieckmann).

No copyright for the taste of a food product.

Food recipes fall under the sole know-how of their creator. It’s up to him or her to keep them secret, or to divulge them. Over time, they could then become traditional, up to be protected as traditional specialities guaranteed or TSG (See here).

© INSCRIPTA