IP & Art

Can the taste and aroma of food be recognized as a copyrighted work which may have originality to some extent through human effort?

The answer is “yes” and “no”. At least in EU courts, fragrances may be copyrighted, but food tastes are just an idea, not a copyrighted work. It is not a concrete expression. If so, what is that logic based?

In 2006, cosmetics company Lancome sued Kecafa for copyright infringement, alleging that the company copied its Tresor perfume. The issue was whether the scent could be objectively described. Lancome argued that "a fragrance can be perceived by perceptual ability, there is a certain degree of originality, and the characteristics of the copyright holder are involved". “The scent is a crystal of long-term effort by combining various elements such as roses.”

The Dutch Supreme Court accepted Lancome's argument and recognized the copyrightability of fragrance.

EU courts, on the other hand, reached a different conclusion on food taste. A Dutch cream cheese producer has sued a competitor. The reason was that they copied the taste of their main product.

After much consideration, the European Court of Justice, the EU's final judicial body, ruled that "food taste is too subjective and cannot be objectively defined, so it cannot be subject to copyright law." In order to legally protect the taste of food, a clearer and more objective definition of taste was needed. After all, taste can be seen to vary depending on the person who tastes the food, the age and preference for food, the environment, and the circumstances of eating the food. Compared to the fragrance, it seems controversial. This is because fragrance is also very subjective.

However, perfume was able to receive copyright protection because it had some specific and objective data through the process of industrialization early on. However, it can be seen that food taste is still somewhat lacking in scientific research data on the process of independent industrialization, especially systematic taste.

If scientific analysis data on food taste is reinforced in the future, there is ample room for protection of copyrighted works. This is because food is also a creation made through investment and effort for a considerable period of time.

Therefore, it appears that if the law is based on common sense, especially in terms of the concept of justice pursued by the law, the taste and aroma, the result of investment and effort for a considerable period of time, should also be protected.