Charter). If a food’s flavour were monopolised, could a competitor invoke freedom to conduct business as a defence? The CJEU’s jurisprudence in copyright has been rather strict in not allowing external fundamental rights defences beyond the prescribed exceptions in legislation, which, however, are provided precisely to address the collisions between copyright and fundamental rights and establish a balance between them.85 In cases like Deckmyn86 (parody) or Pelham87 (sampling), the Court addressed freedom of expression only within the scope of enumerated exceptions or in interpreting concepts like parody, rather than as an open-ended override. Nevertheless, the recourse to fundamental rights-based reasoning in the CJEU’s copyright case law has sharply increased, particularly in interpreting copyright exceptions and limitations.88 Trademark legislation explicitly acknowledges fundamental rights: Recital 27 of the EU Trade Mark Directive and Recital 21 of the EU Trade Mark Regulation state that the law should be applied in a way that ensures full respect for fundamental rights, “and in particular the freedom of expression.”89 Legal commentators have posited that courts could employ a case-by-case balancing to allow certain uses in light of free expression or competition principles.90 In any case, trademark law’s built-in limitations (e.g., use in accordance with honest practices, comparative advertising allowances, etc.) and fundamental rights considerations could come into play to ensure that the owner cannot suppress all references to or uses of that scent or flavour inappropriately. 4.3. Public Policy and Morality Grounds An alternative doctrinal mechanism to address these concerns within current law could be the “public policy or morality” exclusion in trademark law. Article 4(1)(f) of the Trade Marks Directive and Article 7(1)(f) of the EU Trade Marks Regulation (and corresponding national provisions) allow refusal of marks that are contrary to public policy or accepted principles of morality. Traditionally, this has covered things like offensive words, hate symbols, or illegal drug references – not economic policy issues. However, one might argue that allowing 85 ibid 243. 86 CJEU judgment of 3 September 2014, Deckmyn, C‑201/13, ECLI:EU:C:2014:2132. 87 CJEU judgment of 29 July 2019, Pelham, C-476/17, ECLI:EU:C:2019:624. 88 See Tito Rendas, ‘Fundamental Rights in EU Copyright Law’ in Eleonora Rosati (ed), The Routledge handbook of EU copyright law (Routledge 2021) 18–38. 89 Geiregat (n 7) 243. 90 ibid. 287 TRADEMARK AND COPYRIGHT PROTECTION FOR SCENT AND FLAVOUR OF FOOD PRODUCTS
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