Can You Copyright Taste: A battle between the Tongue & the Mind

Date : June 26, 2019

Taste could be defined as a person or an animal’s ability to recognize different flavours or as the flavour of something. The subject of sensory copyright is indeed complex, including within it various intricacies. It becomes a matter which often interests various minds.

Recently last year, in the case of Levola Hangelo BV v. Smilde Food BV, the issue whether such unconventional works could be copyrighted was brought up before the Court of Justice, Europian Unions Highest legal authority. The petitioner, a dutch food producer, used to produce Heks’nkaas i.e., witches cheese, which is unique to the market It is made with cream cheese, herbs and vegetables such as garlic, parsley and leek. Levola Hangelo contended that Smilde Foods had infringed the copyright that Levola had over the taste cheese spread. Levola brought the recipe of the cheese spread in 2011 & contended that it should be allowed the copyright over its taste. Smilde’s product,on the other hand contained of similar ingredients with the name Witte Wievenkaas further containing a reference to witches. The issue of trademark infringement being resolved, the court faced the issue of whether the taste of food could be protected by a copyright?

The petitioner Levela relied on a ruling in Lancome v. Kefoca by the Dutch Supreme where the smell of a perfume was held to be eligible to be protected by a copyright.Various reasons were put forward by the Netherland Supreme Court stating that the ‘scent’ was eligible to be protected under the Dutch copyright laws as:

  1. A sensory perception could be the basis of recognition for it.

  2. The product contained such ingredients which were not only an original mix, such that senses could quantify and also constant as well as substantive to be protected by a copyright

  3. It was marked by a unique stamp of Sophie Grossman, the famous “nose”, who also market it as her “Hug me” perfume.

The position in France is such that the judgment in Lancome conflicted with the French Court’s judgment by Cour the Cassation in which it was held that a scent could not be protected under a copyright as it was mere implementation of skills which differs majorly from sufficient precision.

It was held by the competent court that for any work to be protected by a copyright, it needs to be so that it is sufficiently precise and objective to be identifiable. The court further opined that ‘taste’ of any food item lacks the quality and cannot be objective in its identification. Taste is subjective as well as variable, it could be based upon various personal biases and different people identify it differently with changes in it with time. It was also the opinion of the court that the world at present is not sufficiently enable to develop a technical expertise in such matters. Objectivity and precision in the identification of the taste of a particular dish so that it is distinguishable from others of its kind is beyond our capabilities as of now.

Taking under consideration the position In Italy there is no case for the protection of fragrances. A few years ago, a request was received by the Italian CMO (SIAE) for managing rights over   which drew inspiration from the character of Eleonora Duse’s character. It was a favourable clue regarding the protection of fragrances under copyright according to various commentators, but later the same turned it to be false fat as the request was only for the protection of the bottle and the label distinguishing it and not really the fragrance, and hence there seemed to be no mark on non-conventional works protection in Italy.

This indeed becomes an issue igniting various debates in the current IPR regime.  The judgement also develops a high probability for various applications and indeed a large amount of litigation concerning non-conventional works seeking copyright protection. With social media platforms to showcase almost all activities this world could contain, the concept of copyrighting non-conventional works like that of taste further gets hazy with food bloggers coming to picture. This could further lead copying elimination the very use of copyright protection.

For a successful litigation in non-conventional works, various proprietors as well as companies would need to find a way to objectify and specify an unique identity for their product. Indeed a vast and wide interpretation is provided by the Berne convention for what could be copyrighted. Even though India is a signatory to the convention, it follows a close copyright regime. As time progresses and technology innovates, various progressive judgments have also been passed by the Indian courts as regards non-conventional works like that of combination of colours (multiple colours, single colour, etc.) as well as that of sounds. The need of the hour becomes to find a way as to how the protection of non-conventional works could gain protection.  How this area evolves in the near future would indeed be an aspect to check upon.

About the Author:  Maahi Mayuri Student of New Law College, Bharati Vidyapeeth Deemed University, Pune, Intern at IP and Legal Filings  and can be reached at support@ipandlegalfilings.com.

References:

[1]https://www.wipo.int/edocs/mdocs/sme/en/wipo_smes_rom_09/wipo_smes_rom_09_k_theme05_3-related1.pdf.

[2] Levola Hengelo BV v. Smilde Food BV, C-310/17.

[3] Lancôme v Kefoca.

[4] FORBES, https://www.forbes.com/sites/lesliewu/2018/07/31/can-taste-be-subject-to-copyright/#76d2878916c9