Can you have copyright in a flavour?

It’s unusual that breaking copyright news affects food producers. But a recent European court decision (Levola Hengelo, C-310/17) looks at whether copyright can protect the taste of a spreadable cheese. Dutch company Levola Hengelo sued to protect its spreadable cream cheese dip, Heksenkaas, against the maker of a competing cheese-based product, Witte Wievenkaas. Nothing too surprising so far. But unusually, Levola’s court action was based on copyright infringement.

Is a food taste a “work”

Copyright protection applies to creative “works”, which by international convention include “every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression”. Levola used this to argue that the taste of a food product could be classified as a work of literature, science or art. Levola drew an analogy with the Dutch courts’ recognition in principle of copyright protection for the scent of a perfume.

For the copyright claim to succeed Levola had to convince the court

  • that the taste of their spreadable cheese was an original intellectual creation
  • that there was an “expression” of that creation which was identifiable with sufficient precision and objectivity – but not necessarily in a permanent form.

Precision and objectivity

The main problem the court identified is that it is not possible to pin down with sufficient precision and objectivity the taste of a food product. Identifying the taste of a food is a subjective exercise. It will depend too much on factors like the age, preferences and eating habits of the person consuming it. And there is currently no scientific method for objectively identifying the taste of a food. This means that competing producers and enforcing authorities like the courts cannot be crystal clear as to what exactly is protected.

In contrast, creative works in copyright’s normal sphere of influence, that of literature, images, film and music, can be pinned down in a precise way. 

Levola had argued that an independent expert could be appointed to assess and identify the taste of the food. Experts are commonly relied on in intellectual property cases to provide an objective assessment of something likely to be outside most people’s knowledge. But the preliminary (Advocate General) opinion given in this case rejected this idea. Even an expert would be acting subjectively and there would still be no precise and objective determination.

No protection - for now

The European court concluded that, for now, a food taste could not be a “work” for copyright purposes. Things might be different if (when?) technical methods to assess flavour become available, although that is likely to require legislative change to offer protection.

Similar issues arise when trade mark protection is tried for flavours and smells. although protectable in theory, the need to pin down their characteristics in a way that is “clear, precise, self-contained, easily accessible, intelligible, durable and objective” causes problems. The lack of available technology to determine a flavour or smell with the necessary clarity and precision means that trade mark registration is not currently allowed.

For further information or if you have any queries on this or any other related matter please contact Isabel Teare, Technology Lawyer email: [email protected]

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