Earlier this month, the European Court of Justice ruled that the taste of a food product is not eligible for protection under EU copyright laws.
The ruling by European Union’s highest legal authority, which is binding on all EU member states, came in a lawsuit brought by the Dutch manufacturer of a popular spreadable cheese dip in which the manufacturer accused a rival company of copyright infringement after it began producing a similar product.
The Court explained that to be eligible for copyright protection, the subject matter must be expressed “in a manner which makes it identifiable with sufficient precision and objectivity.” Unlike works of literature, art, or music, which offer “a precise and objective expression,” a food’s taste “is identified primarily on the basis of subjective sensations and experiences which depend on factors particular to the subject person, such as age, food preferences and consumption habits, as well as on the environment or context in which the food is consumed.”
The Court also noted a lack of any technical means for precisely and objectively identifying the taste of a food product which enables it to be distinguished from other tastes.
Advertising comes in many forms. Although menu labeling requirements may not seem like a traditional form of advertising, menus are consumer-facing and undoubtedly contain information that affect consumer purchasing decisions. Thus, it’s important for affected companies and their advertising departments to be aware of menu labeling rules and requirements and to ensure timely compliance.