He admitted it was difficult to pinpoint the taste. Still, the decision itself was a bit of a sour ending, he said. “It’s a discrimination of senses that something you can taste with your mouth is not protectable by copyright,” he said.
Can food be covered by copyright at all?
To be protected by copyright, a work must be an “expression” of an original intellectual creation.
“Copyright isn’t supposed to be used to stop the spread and use of ideas,” said Joshua Marshall, an intellectual property lawyer at the European law firm Fieldfisher. “The taste of a leek-and-garlic cheese is really an idea.”
But it is theoretically possible to apply copyright law to food in other ways. If someone made beautiful cakes and saw them as a work of art, that person could have an argument, he said. “If somebody copied your cake creation and created one that looked visually similar or identical in the U.K., you’d have grounds for copyright infringement,” Mr. Marshall said.
What does the ruling mean for food manufacturers?
Their descriptions of taste must be easier for a court to digest.
To win a copyright case, they will need to find a way to objectively convey the taste of their products.
The Court of Justice, “which has been expanding the reach of copyright when it comes to digital platforms and use online, has now, in the case of food, staked out some ground and said, ‘No, there are some boundaries,’” said Ben Allgrove, chairman of the intellectual property, technology and communications group at the law firm Baker McKenzie. “For anyone who wants to protect taste, smell, touch, those sorts of sensory perceptions of a product, it pretty much takes the copyright off the table.”