or commonplace nature of many tastes and smells means they often lack the distinctiveness to serve as trademarks and implicate competition policy concerns about free availability. EU copyright law, for its part, has drawn a firm line with the Levola Hengelo judgment: the taste of a food product (and by implication any other pure sensory experience like a smell) is not a protectable work. The requirement of an identifiable expression as a condition of copyright subsistence leaves no room for the subjective, variable realm of taste perceptions. In reaching this result, the CJEU ensured that the law remains grounded in protecting expressions of ideas, not the ideas or experiences themselves, thereby keeping the flavours and aromas that permeate daily life within the public domain. No one can claim an exclusive copyright on “the taste of strawberry and basil” or “the smell of vanilla,” even if they creatively combined ingredients to achieve it. Under the current legal framework, companies seeking to safeguard a unique flavour or scent associated with their products must rely on indirect strategies. They can trademark the name or logo under which the product is sold, patent novel formulations (if patentable), or maintain recipes as trade secrets. They can even use design rights or trade dress to protect the packaging and visual presentation consumers might associate with a scent or flavour. But they cannot, in the EU, claim a direct monopoly on the sensation of the product itself – e.g., “the savoury garlic taste of our chips” or “the aroma of our spiced tea.” This boundary is seen by many as a healthy and necessary limit of intellectual property, ensuring that basic sensory qualities remain available for all chefs and manufacturers to use in their own creations. Producers’ legitimate interests in tastes and smells are already well protected by unfair competition and trade secrets.93 The boundary also avoids the evidentiary and enforcement quagmires that would arise if courts had to compare the scents or flavours of two dishes and rule on “similarity” in an infringement context. Looking forward, the debate on sensory marks and works is not entirely closed. Advances in science might one day allow a more objective recording of a scent or flavour (for example, a digital “scent fingerprint” that could be used akin to an audio waveform for sound). If such technology emerges and gains acceptance, the EUIPO and courts could be confronted with new arguments that a smell or taste can indeed be represented clearly and should thus be eligible for 93 Derclaye (n 51) 82. 289 TRADEMARK AND COPYRIGHT PROTECTION FOR SCENT AND FLAVOUR OF FOOD PRODUCTS
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