The EU's highest court has rejected an attempt to use copyright law to protect the distinct taste of a food product.
The court explained that taste is too subjective to allow a work to be uniquely identified, even using science, so it cannot be protected.
The Court of Justice concurred with the expert opinion offered in July by its advocate general, that an artistic work must be capable of being seen and heard. It's the first time the court has been asked to decide whether copyright applies to taste (and hopefully the last), and the first time it's been asked to judge on an artistic work not defined by the 2001 InfoSec Directive.
The case was originally filed in a Dutch court by the owner of the cream cheese brand Heks'nkaas (witches' cheese). It objected to a product, also a cream cheese, made by "Witte Wievenkaas" (wise-women's cheese), which it claimed "infringed" its flavour. It then went on to an appeals court in Arnhem-Leeuwarden, whose judge, rather than sending the plaintiff packing, bounced it up to the wise owls at the CJEU.
The full text of the judgement, released today, is available here.
Things can only get feta
Taste and smell are difficult to protect even under trademarks, something that riles the perfume industry. Producers are obliged instead to create distinctive designs, which in theory are more straightforward to protect. In reality, however, small artisan producers find themselves ripped off by giants with impunity – as this roundup shows. German giant Aldi has been dubbed a "parasite" for creating its own versions of branded products created by small British startups.
Any new sui genesis IP right for taste or smell would run into the issue raised by the CJEU – how can you tell? ®
The system allows any level of court anywhere in the EU to bounce the matter up for guidance in Luxembourg – not just a member state's highest court. In this case, a regional appeals judge felt it necessary to ask for assistance. This ensures the law remains uncertain, which is great news for lawyers. Here's a current list.