Keywords: scent, flavour, food, legal protection, taste, smell, trademark, copyright, olfactory marks, gustatory marks, representability, public domain. I. INTRODUCTION In consumers’ minds, delicious food and beverages are characterised by their flavour and aroma more than by any other attribute. A unique taste or smell of a food product engages human senses and makes the product more recognisable in the market than characteristic logos and packaging alone. This gives distinctive scents and flavours of food products a market value and raises the question whether they can be protected as intellectual property. Traditional intellectual property regimes developed around visual and literary creations seem ill-suited to such ephemeral, sensory subject matter. Yet the issue has been tested in courts and registries, especially in the European Union (EU), where entrepreneurs have attempted to trademark unique scents or flavours, and to claim copyright in the taste of a recipe or food product.2 This article analyses the legal protection, or lack thereof, for olfactory (smell) and gustatory (taste) elements of food products under EU trademark and copyright law. First, the article examines the conditions under which a scent or flavour could, in theory, be registered as a trademark based on the jurisprudence of the Court of Justice of the EU (CJEU), focusing on the issues of representability and distinctive character of such non-traditional marks. The second part of the article turns to copyright. It assesses whether a flavour or aroma can meet the definition of a protectable “work” under EU law, analysing the CJEU’s jurisprudence and related developments. The third part of the article discusses the broader policy context – including fundamental rights and public interest considerations – that has influenced these outcomes. The EU approach is contrasted briefly with the United States’ approach to highlight similarities and divergences in protecting smells and tastes. Finally, the conclusion reflects on the current state of EU law and considers prospects for future change, whether through legislative reform or new technologies that might overcome existing obstacles. 2 The potential protection of food recipes with intellectual property rights is a separate (although connected) from the legal protection of scents and flavours of food. See Daniele Fabris, ‘The Food Industry and the Fallacies of Denying Copyright Protection to Haute Cuisine Recipes’ (2019) 41 European Intellectual Property Review 704. 274 MATIJA DAMJAN
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