David Woods

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It might be tasty, but it won’t attract copyright protection

Corporate and Commercial / 15 November 2018

The European Court of Justice has ruled that the taste of food is too subjective for it to meet the requirements for copyright protection.

A Dutch manufacturer asked the courts to rule that the taste of its spreadable cream cheese and herb dip attracted copyright protection – and that therefore the producer of a rival cheese dip should be ordered to cease production.

The Court said that in order to qualify for copyright protection the taste of a food must be capable of being classified as a “work” and that it must meet two criteria – (i) that it was an original intellectual creation; and (ii) that there was an expression of that creation that made it “identifiable with sufficient precision and objectivity”.

In this case, the taste was found to be too subjective to meet the requirement – depending as it does on personal taste sensations and experiences which vary according to factors such as age, food preferences and consumption habits.

Copyright is the intellectual property right that protects “artistic works” such as books, music and art. It also protects software.  But not, we now know, the taste of food products.

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