Say cheese! (Not all parties were smiling after this judgement)

March 20, 2019

Whilst copyright generally protects a wide variety of subject matter, a Dutch company recently tried to stretch this form of IP protection too far by arguing it should extend to the taste of a food product. In this case, a spreadable cheese dip. We salute their inventive arguments but, unsurprisingly (in our view at least), the claim failed.

The case

The reason the company brought the case was based on an attempt to prevent another company from selling a competing spreadable cheese dip, the ‘taste’ of which it argued infringed their copyright. Whether or not this argument had any legs depended on whether it could be said that copyright even exists in regards to the taste of a food product. Up until now, this question has been largely untested in the courts.  

To put this in context; to be capable of copyright protection a work must be original and the author’s own intellectual creation. The claimant argued that copyright in a taste refers to the ‘overall impression on the sense of taste caused by the consumption of a food product, including the sensation in the mouth perceived through the sense of touch’. To help its case, it relied on a previous decision in which a court accepted in principle the possibility of recognising copyright in the scent of a perfume. It argued that, by analogy (and not illogically), the taste of a cheese spread was not dissimilar.

The defence

The defendant counterargued that copyright is intended solely for visual and sound creations and that the subjective nature of taste and the instability of  food products prevents such items from being eligible for copyright protection.

The court held that, in order to be capable of copyright protection, something has to fall under one of the accepted definitions of ‘a work’ (under the Copyright Directive, which must be interpreted uniformly throughout the EU). To satisfy this definition, it must be original in the sense that it must be the expression of the author’s own intellectual creation. The court also confirmed that underlying ideas, procedures, methods of operation or mathematical concepts are not eligible for copyright protection.

The court went on to say that ‘for there to be a ‘work’…the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form. Its rationale for this was that it must be possible to identify, clearly and precisely, the protected subject matter and that it is inherently impossible to pin down food products in this way. In other words, if it isn’t possible to determine exactly what is protected by copyright, then it won’t necessarily be possible to avoid copying it and therefore would unsettle the whole copyright system!

The verdict

In summary, a food product cannot be considered to be a ‘work’ for copyright purposes and is therefore not capable of copyright protection.

The court summed up by saying that ‘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’.

Playing devil’s advocate, one might be inclined to argue that the same could be said of more conventional copyright works, such as music and paintings. After all, isn’t it arguably the case that one person might enjoy listening to a Baroque cello sonata more than another, according to their age, music preferences and context? With this in mind and in view of the ground-breaking implications that arise if copyright was held to be vested in a food product, we suspect this may turn out to be an increasingly litigated area in time to come.

For further legal advice, you can contact the author of this article, IP expert LawBrief Laura Symons. If you need to protect your IP, please enter an enquiry or call us today on 020 7148 1066 to speak to a member of our friendly Client Care Team. LawBite can deal with all aspects of intellectual property law and provides fixed-price no-obligation quotes too.

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