Copyright does not protect “taste sensations and experiences”: what protection for our culinary art?

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(Taste of food products shall not be protected through Copyright Law)

Or the difficulty to protect “abstract” creations


After being seized by two local producers about the reproduction of a cheese flavour, a Dutch Appeal Court referred to the European Court of Justice (ECJ) to know whether the taste of a food product could be protected by Copyright.

The ECJ states that “the taste of a food product can be protected by copyright (…) only if such a taste can be classified as a ‘work’”, in its decision dated November 13th, 2018 (C-310/17).

According to the precedents based on the Directive 2001/29/EC, two conditions are necessary in order that an intellectual creation can be classified as a “work”:

  • originality, meaning that the work is “the author’s own intellectual creation”;
  • and an “expression of the author’s own intellectual creation”.

Clearly, this notion of “expression” is the key point of this litigation on flavours.

The WIPO Copyright Treaty and the TRIPS Agreement state that “Copyright protection may be granted to expressions, but not to ideas, procedures, methods of operation or mathematical concepts as such”.

Therefore, “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. Public authorities as well as economic operators must indeed identify “clearly and precisely” the subject matter intended to be protected.

The ECJ deduced that such “precise and objective” identification cannot apply to the flavour of a food product, since:

  • unlike, for example, a literary, pictorial, cinematographic or musical work, (…) 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” (age, food preferences and consumption habits, environment and context in which the product is consumed).
  • it is not possible in the current state of scientific development to achieve by technical means a precise and objective identification of the taste of a food product which enables it to be distinguished from the taste of other products of the same kind”.

Thus, unable to be defined as a “work”, a flavour cannot be protected under Copyright Law.

 

Though Trademark Law abandons the constraint of the graphical representation, Copyright Law imposes now the objective representation of the creation to be protected!

This is the opportunity to point out French Judges’ position about protection of perfumes’ scent.

Regarding Copyright Law, reasoning of the French Supreme Court (Cour de Cassation) is detailed in two famous cases:

  • a perfume’s fragrance, which comes out from the implementation of a know-how, does not constitute the creation of a form of expression eligible for protection by Copyright” (Civ 1st, January 22nd, 2009, No 08-11404);
  • most importantly, a perfume’s fragrance – outside of its manufacture process, which is not either an intellectual work – does not constitute a form that is “identifiable with sufficient precision to enable its communication” and, therefore its protection under Copyright Law.  

French gourmet meals, part of the World Heritage, would not deserve a better protection, notably in France, homeland of the greatest Chefs?

Best use of know-how, through the implantation in 2018 of the new French Law No. 2018-670 regarding the protection of Trade secret, is certainly the key for our Chefs de Cuisine.

 Cuisine recipes shall then stay secret in order to benefit from a protection.

The ECJ decision is available through the following link:

http://curia.europa.eu/juris/liste.jsf?num=C-310/17

Do not hesitate to consult us, we remain at your disposal to guide you in the protection of your know-how.

Anaël DUVAL

Juriste spécialisé en PI

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Soazig THEMOIN
Associée
CPI, Mandataire Européen en Marques et Modèles

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