Have you ever looked at a bottle of Febreze and wished it would make you ROFL?
Update, 14 November 2018: Since this article was first published, the EU’s highest legal authority (the European Court of Justice) has now ruled that the taste of food is too “subjective and variable” for it to meet the requirements for copyright protection under Directive 2001/29/EC . The taste of food fails the test of being capable of being classified as a 'work'. Until scientific development makes it possible to precisely and objectively identify the taste of a food product, enabling it to be distinguished from the taste of other products of the same kind, the taste of food looks likely to remain an unprotectable sensory delight.
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?
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?
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:
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).
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 firstname.lastname@example.org.
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