Trademark and copyright protection for scent and flavour of food products Matija Damjan1 I. Introduction. – II. Trademark Protection of Olfactory and Gustatory Marks in EU Law. 2.1. The Legal Criteria: Signs, Representability, and Distinctiveness. 2.1.1. Type of Sign. 2.1.2. Representability. 2.1.3. Distinctiveness. 2.2. Attempts to Register Olfactory and Gustatory Trademarks. 2.3. United States’ Perspective. – III. Copyright Protection of Tastes and Smells. 3.1. The Notion of “Work” and CJEU’s Levola Hengelo Decision. 3.2. Prior National Approaches. 3.3. United States’ Approach. – IV. Fundamental Rights and Public Policy Considerations. 4.1. Public Domain Concern. 4.2. Fundamental Rights as a Balancing Tool. 4.3. Public Policy and Morality Grounds. – V. Conclusion. Bibliography. The article examines how specific flavours or scents of food products can be protected under European Union trademark and copyright rules. It analyses the jurisprudence of the Court of Justice of the EU – notably Sieckmann on olfactory trademarks and Levola Hengelo on the taste of a food product. The article first outlines the criteria for registering non-traditional trademarks like scents and flavours, including the strict requirements of representability and distinctiveness. It then explores whether sensory experiences such as taste and smell qualify as protectable “works” under copyright, especially in light of the Levola Hengelo ruling. Fundamental rights and public policy considerations – such as the need to keep certain sensory signs freely available for all – are also discussed as underlying rationales. Brief comparisons are drawn with US law, where scent trademarks have had limited acceptance, but copyright remains unavailable for tastes or smells. The article concludes that, under current EU law, specific flavours and scents of foods fall broadly outside the scope of trademark and copyright protection, absent further legislative intervention or technological advances in defining such sensory subject matter. DOI 10.60559/gl15 1 PhD, Associate Professor at the University of Ljubljana, Faculty of Law and Research Fellow at the Institute for Comparative Law at the Faculty of Law in Ljubljana. ORCID: 0000-0001-6063-0328. The research for this article was partially funded by the Slovenian Research and Innovation Agency under the research programme P5-0337 Legal Challenges of the Information Society.
RkJQdWJsaXNoZXIy MTE4NzM5Nw==