The taste of food cannot be copyrighted, rules EU court

The Court of Justice of the EU (CJEU) said EU copyright laws prevent the taste of a food product from being protected and that national laws throughout the EU cannot be interpreted as granting copyright protection to such a taste either.

"The ruling emphasises the need for legal certainty when affording works copyright protection and means that food producers are free to compete and offer similar products," said Iain Connor, an expert in intellectual property law at Pinsent Masons, the law firm behind Out-Law.com.

Recent changes to trade mark law mean that trade marks no longer have to be capable of being 'graphically represented', but Connor said those reforms do not necessarily open the door for food manufacturers to gain trade mark protection for the taste of their products.

"A trade mark office would be loathe to accept and protect a pot of spreadable cream cheese dip given that it is not clear, precise, self-contained, easily accessible, intelligible, durable and objective," Connor said.

The CJEU was asked to clarify the issue of copyright protection by a regional Court of Appeal in the Netherlands after an intellectual property rights holder claimed the taste of its product, a spreadable cream cheese dip, was protected by copyright.

Before the courts in the Netherlands, Levola Hengelo sued Smilde Foods, the manufacturer of a rival product, alleging infringement of its copyright.

The CJEU said that the taste of a food product could be protected by copyright only if such a taste could be classified as a 'work' under EU copyright laws.

Levola argued that it is possible to classify the taste of a food product as a work of literature, science or art eligible for copyright protection. It said it was analogous to recognising copyright in the scent of a perfume, which the courts in the Netherlands have previously said is possible.

Smilde argued that copyright law is only intended to provide protection to visual and auditory creations, and further challenged that "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", according to the CJEU.

In its ruling, the CJEU said that, to be classed as a 'work' for the purposes of EU copyright law, the taste of food would need to be capable of being "expressed in a manner which makes it identifiable with sufficient precision and objectivity", even if "not necessarily in permanent form".

The CJEU said that because it is not possible for the taste of food to be "pinned down with precision and objectivity", taste cannot be classed as a 'work' under EU copyright laws.

"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 CJEU said.

"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," it said.

Iain Connor of Pinsent Masons said: "It is interesting that there was an attempt to rely on the fact that in the Netherlands copyright protection is possible for the scent of a perfume; something which is not available in the UK or elsewhere in the EU."