reproduced, or otherwise communicated for more than a transitory duration. The flavour of a dish or the scent of a food product cannot be “fixed” or recorded in any manner equivalent to a book, painting, or sound recording.76 A recipe or chemical formula can be written down, but that is not the same as the taste or smell itself. Accordingly, US courts have consistently held that recipes are functional and lack the expressive creativity for copyright, except for any creative literary expression in describing them. Hence, they have never recognised a flavour or scent as a copyrightable work.77 The inability to separate a scent or flavour from its function poses the main barrier.78 There have been a few attempted lawsuits (often creatively pleaded) by fragrance companies or chefs, but none have succeeded in convincing a court that a flavour or aroma is a protectable expression. This stance is entirely consistent with the EU law position after Levola Hengelo. IV. FUNDAMENTAL RIGHTS AND PUBLIC POLICY CONSIDERATIONS 4.1. Public Domain Concern The non-acceptance of the legal protection of scent and flavour under trademark or copyright rules is not merely a technical result of drafting deficiencies in legislation but also reflects deeper policy concerns. Granting exclusive property rights over smells and tastes might lead to undue privatisation of elements of human experience or culture that should remain free for all.79 In trademark law, the term “Freihaltebedürfnis” (German for “need to keep free”) encapsulates the idea that some signs or terms should not be monopolised by any one trader because competitors need to use them.80 Traditionally, this principle is embodied in rules barring the registration of generic or descriptive terms.81 For example, no company can own the word “sweet” for candy or the colour of margarine that all producers must use for functionality. Concerning smells and tastes, one might argue there is a similar need to leave these basic sensory 76 Lopez (n 39) 364–366. 77 Zamora and del Rio (n 14). 78 Lopez (n 39) 370. 79 Geiregat (n 7) 242; von Scholten Illum (n 74) 707–708. 80 Geiregat (n 7) 219, 242. 81 Jennifer Davis, ‘Protecting the Common: Delineating a Public Domain in Trade Mark Law’ in Graeme B Dinwoodie and Mark D Janis (eds), Trademark law and theory: a handbook of contemporary research (Edward Elgar 2009) 354–360. 285 TRADEMARK AND COPYRIGHT PROTECTION FOR SCENT AND FLAVOUR OF FOOD PRODUCTS
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