Copyrighting Tastes!

Imagine A Copyright on Taste!

While this might seem bizarre to many but not so to a whole lot of food industry that thrives on our taste addiction . Although a common trend in the industry to closely guard the exact recipe of unique tastes , yet exclusive proprietorship to create specific taste for commercial profit does seem stretching the Copyright concept a bit far. As was evidenced in a recent copyright dispute over the taste of cheese!

The Dutch company ‘Levola Hengelo’, maker of a famous cheese spread called ‘Heksenkaas’ (witches’ cheese), certainly believed in copyright of the taste of its cream cheese spreadable dip and the manufacture of a similar product by ‘Smilde Foods’ led to Levola raising a claim in Dutch Tribunal against Smilde, accusing an infringement of copyright in the taste of Heksenkaas.

While Smilde argued that a taste in itself cannot be protected by copyright, the case was dismissed on the grounds that the taste of “Heksenkaas” “lacked originality and personal character”. It is interesting that The Tribunal was not altogether against the Copyright of Taste.

Eventually an  Appeal was preferred by Levola against this Order to the European Courts, with the Attorney General and Court of Justice of European Union being asked to consider whether the taste of a food product can be protected under the EU Copyright Directive. In its sensible judgement the European Court of Justice decided against the Copyright. It ruled that “The taste of a food product is not eligible for copyright protection”. It specified that ‘work’ within the meaning assigned under Copyright Directive requires two important elements, Firstly the subject matter must be “an original intellectual creation”, and Secondly it must be considered an “expression” of that original intellectual creation.

Further, the Court commented that since Copyright is granted to expressions and not to ideas, a work therefore must be expressed in a way which makes it “identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form”. Such as in a literary work or musical work one is able to determine the precise and object expression of that work. While the taste of a food product cannot be ascertained precisely and depends on a variety of factors such as a person’s age, food preferences or even the environment in which a product is consumed can alter the way that we taste.

While the competitors around globe indulge in claiming exclusive rights over their innovation/creations, I Personally find the concept of #Copyright in taste an impractical and unviable feat . To be able to identify a taste precisely and to eliminate all possibilities of commercialization of similar tastes shall be beyond the capacity of any  IPR enforcement system.

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