This article is a summary of an update on the Matheson website regarding the European Court of Justice (ECJ) ruling that the taste of food cannot be protected by copyright as it cannot be “pinned down with precision and objectivity”.
The update explains this case, what it means for food manufacturers who wish to protect their goods and what Intellectual Property rights protect food products and processes.
The case arose when the Dutch owner of a spreadable dip with cream cheese and herbs, “Heks’nkaas” (witches’ cheese) claimed that another Dutch manufacturer, Smilde had infringed its copyright by producing and marketing a very similar product.
The ECJ ruled that taste is a subjective matter and therefore cannot be copyrighted. It also commented that “the current state of scientific development precluded the possibility of achieving precise and objective identification of the taste of a food product. This ruling also implies that taste in food will not be susceptible to trademark protection, as it would not be “distinctive” enough to distinguish the product from that of another manufacturer.”
The article looks at what other IP rights are available for food manufacturers to protect their businesses. The article states “Various aspects of food products and production can be protected through patents, trade secrets, trademarks, designs, plant variety rights, copyright and geographical indications. Some rights spring into existence, while others need to be applied for in a registration process.”
The authors advise that food businesses should examine what aspects of their businesses, (such as recipes or a manufacturing process) can be protected as a trade secret.