Digitizing Scent and Flavor: A Copyright Perspective

Abstract

Should the flavor of a cheese fall under copyright protection? The Court of Justice of the European Union recently confronted this question in Levola Hengelo BV v. Smilde Foods. Although the court ultimately denied protection, its reasoning opened many doors for those seeking intellectual property protection for scents and flavors. The court implied that it was the subjective nature of a cheese flavor that bars it from enjoying the protection copyright affords, which begs the question of what would happen if there were a sufficiently objective way to describe a flavor. Recent developments in technology have led to the digitization of scent and flavor. In the intellectual property space, digitization provides a superior means of fixation for scents and flavors but it also threatens to make reverse engineering much easier. This would take away the protection trade secret law affords to scents and flavors. This will undoubtedly push industry leaders to seek more protection from the law. This Note explores how copyright law in the United States and the European Union might handle this new technology and argues that protection should not come in the United States until Congress weighs all considerations and adds a new subject matter category for scents and flavors to the U.S. Copyright Act.