IP Information & News

GBBO and the art of baking — can I protect my innovative food products with IP?

Dr Clair Curran

By Dr Clair Curran

Senior Patent Attorney

During bread week on the Great British Bake Off (GBBO) 2018, Rahul innovatively used sweet mango chutney with cranberry and Bengali five spice to give an unconventional twist to the taste of a traditionally fruity Chelsea Bun.

In the tent, the judges tasted, with Paul Hollywood declaring “that filling is stunning”.

Could Rahul protect his creation with intellectual property (IP) rights? Could he copyright the taste of his Chelsea Bun to profit from his creative recipe in future?

Is a taste an artistic work?

Essentially, this question comes down to whether taste can be considered an ‘artistic work’.

The Berne Convention for the Protection of Literary and Artistic Works is an international agreement governing copyright, which was first accepted in 1886. Article 2 of the Convention defines the expression "literary and artistic works" as including every production in the literary, scientific and artistic domain, whatever the mode or form of its expression. The Berne Convention contains a non-exhaustive list of “literary and artistic works” to be protected. But, the examples refer only to works that can be perceived by sight or hearing.

This has led to confusion as to whether ‘works’ perceived by other senses (such as smell, taste or touch) can be afforded copyright protection. Can the taste of a cheese, the bouquet of a rose, or indeed the nose of a wine be considered artistic works?

What the law says — a recent case in point

Judges at the highest court in Europe, the Court of Justice of the European Union (CJEU), are currently digesting the facts of a long-standing dispute between two Dutch cheese companies — Levola Hengelo BV (Levola) and Smilde Foods BV (Smilde).

Levola produces a garlic and leek cheese spread called Keks’nkaas. It filed an action in the Netherlands against Smilde, alleging that Smilde had infringed the copyright in the taste of Keks’nkaas by producing a spreadable cheese with the same taste, called Witte Wievenkaas. The Dutch Court of Appeal asked the CJEU for clarification on what qualifies as a protectable ‘work’ under European copyright law.

Advocate General Melchior Wathelet set the mouths of copyright aficionados watering on 25 July 2018 with his much anticipated opinion. Although this is an impartial, non-binding opinion — in the vast majority of cases, the CJEU follows the legal reasoning provided.

In his opinion:

  • The taste of a foodstuff cannot be reconciled with any of the ‘works’ protected by the Berne Convention and there is no provision of international law that protects the taste of a foodstuff by copyright.
  • Copyright extends to original expressions and not to ideas. These original expressions must be sufficiently precise and objectively identifiable.
  • In theory, a taste could be protected if it was possible to graphically depict it. However, in light of the current state of the art, the precise and objective identification of a taste is impossible — especially given the subjective character of the taste experience and its transient, volatile and unstable nature.

The truth about taste

This reasoning makes sense, because ultimately, taste is a perception that differs from person to person. Take Marmite® — as the tagline goes, you either love it, or you hate it. Taste is also perceived differently by the same person — food tastes different when you have a cold, for example. Even flavours that you once despised can suddenly become delicious with age (olive, anyone?).

Taste is also transient. It evolves with age, and varies with storage conditions. So when does ‘the taste’ actually exist? In a copyright infringement action, you’d need to know precisely when to assess the taste of a product. Hopefully this gives you an idea of how tricky it would be to protect the taste of a food product.

If the CJEU concludes that, until taste can be expressed in a precise, objectively identifiable nature, the taste of a food product cannot be protected by copyright, a chef might still be able to protect the recipe if it’s recorded in writing, as this is a literary work. This may offer some degree of protection if another chef reproduces the recipe in written form (for example, in a book or blog).

Consider other types of IP protection

Other types of IP rights may well be available to protect the innovative food product. For example, the process of making the food product might be eligible for protection by a patent, or the brand associated with the food product could be protected by a trade mark.

If you have a food product and want to find out how you might be able to protect it with IP rights, please feel free to drop me an email at cxc@udl.co.uk.

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