HM Insights

Hard cheese for food & drink makers looking to copyright the taste of their products

The European Court of Justice has now issued a decision that the taste of a cream cheese product is not protected by copyright.

At first glance, the idea that copyright could extend to taste may seem somewhat absurd with its primary aim being to protect the author of some form of creative work from others copying it. That's why it is easy to understand why copyright should apply to books, works of art, musical recordings, photographs and software. But taste?

However, copyright does extend to recordings, so the sense of hearing is relevant; and other senses are capable of giving protection to the intellectual property they contain – for many years, smell has been capable of registration as a trade mark (though you still have to describe it in words).

So perhaps it's not such a strange idea after all.

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Dutch courts dip into cream cheese copyright debate

That was the argument run in the Dutch courts by the producer of a spreadable cream cheese and herb dip who claimed that a rival producer had copied the taste of their product and was therefore infringing their copyright.

To date, any similar claims have been based on trade secrets with producers of distinctive foods relying on their recipes being kept secret. But if someone replicates the recipe, whether by trial and error or reverse engineering there is nothing to be done. Unless … they could claim copyright in the taste that gave them protection against someone else copying it.

The matter having been referred to the European Court of Justice by the Dutch Court of Appeal, we now have a full legal analysis to show that to be a "work" capable of copyright protection two criteria must be met:

  • it must be an original intellectual creation; and
  • there must be an "expression" of that creation that makes it "identifiable with sufficient precision and objectivity".

While the producer would claim that their dip had a distinctive taste, the court decided that the taste of a food product "cannot be identified with precision and objectivity". The whole basis of taste was that it was dependent upon taste sensations and experiences which are "subjective and variable" – with the judges referring to factors such as the age of the consumer, their food preferences and consumption habits, all of which might affect their sense of taste.

And so we now know that taste cannot get the protection of copyright.

Other ways to protect your products

Taste and reputation of an individual product can be protected in other ways through EU designations of protected geographical indication (PGI) or protected designation of origin (PDO). A PGI product must be produced, processed or prepared in the geographical area with which it is associated; and to obtain PDO status, all three production stages must take place in the area and the product must also have distinctive characteristics.

UK products which benefit from this level of protection include Stornoway black pudding, Arbroath smokies, Jersey Royal potatoes and Cornish pasties.

But like the recent case which has had to go to the European Court of Justice, these protected names also depend upon EU legislation and, if the matter is not dealt with in the Brexit negotiations, while such sources of origin may continue to be protected by new domestic UK legislation there is no guarantee that the same protection will be given to UK products in the rest of the EU.

The best protection a producer can obtain is therefore to build up their brand reputation and register a trade mark – others may claim their product tastes the same, but brand loyalty has huge value as consumers expect their products to "be what it says on the tin".

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