European Union: Cheesed Off: Taste Is Not Eligible For Copyright Protection

Last Updated: 29 November 2018
Article by Deirdre Kilroy

Intellectual property law is essential to protecting a food business in a competitive market. A food business should have a clear understanding of the intellectual property rights available to protect its market position. Intellectual property law is constantly evolving, which makes a recent attempt by a cheese manufacturer to protect the taste of its product using copyright particularly interesting.

The European Court of Justice (the "CJEU") has ruled that the taste of food cannot be protected by copyright as it cannot be "pinned down with precision and objectivity". This decision delineates a limit in terms of product protection for food manufacturers, and in terms of non-traditional copyrights more generally.

In this update we explain the background to this interesting case, what it means for food producers concerned with protecting their goods and what IP rights protect food products and processes.

Background

Levola is the Dutch owner of a spreadable dip with cream cheese and herbs, "Heks'nkaas" (witches' cheese).  It had argued that the production and sale of "Witte Wievenkaas" (wise-women's cheese) by another Dutch manufacturer, Smilde, infringed its copyright in the taste of Heks'nkaas.

Levola argued that taste, like a literary or artistic work, can and should be protected as a copyright work. Smilde countered that the instability of a food product, and the subjective nature of the taste experience, precludes it from copyright protection.

The Judgment of the CJEU

The CJEU stated that the taste of food must be capable of classification as a "work" within the meaning of the InfoSoc Directive1 in order to avail of copyright protection.

To qualify as a copyright work taste must satisfy the tandem conditions of being the original intellectual creation of the author; and being expressed in a manner which makes it "identifiable with sufficient precision and objectivity", even if that expression is not necessarily in permanent form.

The CJEU stressed the need to be able to clearly and precisely identify the subject matter to be protected, and the elimination of any element of subjectivity in the process of identifying that subject matter.

It ruled that taste is inherently subjective. Taste is based on sensations and experiences which depend on "factors particular to the person tasting the product concerned such as age, food preferences and consumptions habits, as well as on the environment or context in which the food is consumed".

Interestingly the CJEU also commented that the current state of scientific development precluded the possibility of achieving precise and objective identification of the taste of a food product. This ruling also implies that taste in food will not be susceptible to trade mark protection, as it would not be "distinctive" enough to distinguish the product from that of another manufacturer.

What Other IP Protections Exist for Food Manufacturers?

In order to protect their rights in a food product, manufacturers will need to continue to look to other intellectual property rights. Various aspects of food products and production can be protected through patents, trade secrets, trade marks, designs, plant variety rights, copyright and geographical indications. Some rights spring into existence, while others need to be applied for in a registration process. Companies should take care to identify, secure and protect the rights available to them in a highly competitive sector with a huge demand for innovation.

Because it is a relatively new development, when conducting IP audits we find that not all companies have taken action in relation to the trade secrets used to operate their businesses. Irish law introduced a new concept of a trade secret earlier in 2018. We have seen large manufacturers take action, by identifying and protecting their trade secrets, to position themselves to protect them in the future. A recipe or manufacturing process may qualify as a trade secret if: (1) the information is not readily known or accessible; (2) it has commercial value due to its confidentiality; and (3) reasonable steps are taken to preserve its secrecy. A manufacturer may then seek redress for any unlawful disclosure or use of the trade secret.

Co-authored by Shauna Joyce, Trainee in the Technology and Innovation Group. 

Footnote

1. Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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