Intellectual Property

No, You Can’t Copyright a Taste -- And Other Dumb Things You Can’t Get IP Protection Over

Sometimes, copyright or trademark protection is just not appropriate.

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Want to copyright the taste of that cheese? It’s a trap!

Initially, I set out to write about a recent EU case advising against the ability to copyright a taste. Instead, I ended up with several examples of ridiculous things that people have tried — and failed — to gain copyright or trademark protection over. Intellectual property can certainly provide incentives to innovate, but often times owners of products, works, or franchises overstep and aggressively try to gain protection over everything. Intellectual property rights provide the rightholder the ability to exclude others from using the item and can therefore be a powerful tool in gaining competitive advantage. That said, there are some things that really have no business being copyrighted or trademarked (or patented).

You can’t copyright the taste of a cheese.

I haven’t come across a case in the United States asserting copyright protection over a taste, but over in the EU, a company tried to do just that for the Dutch cheese Heks’nkaas. In late July, Advocate General (AG) Wathelet issued his opinion advising the Court of Justice of the EU (CJEU) to reject this claim. Wathelet’s opinion suggests that, based on the Berne Convention for the Protection of Literary and Artisitc Works — an international agreement providing minimum standards for copyright — only works that can be perceived through sight or hearing, not by taste, are protectable. Wathelet notes that copyrightable works should be identifiable as an objective, rather than subjective matter.

Wathelet’s conclusion is, of course, the right result for any number of reasons including practical ones. How on earth would a judge determine if another cheese infringed the first? Taste is highly subjective. My husband loves cilantro; I think it tastes like soap. I’m highly sensitive to the taste of bananas whereas my husband won’t even notice it in a smoothie. How on earth could one properly and sufficiently describe a taste for registration?

You can’t copyright a recipe.

While we’re on the topic of food, let’s turn back to the United States. Note that recipes are also not copyrightable, at least insofar as they merely list ingredients and steps. While copyright might protect a combination of recipes in a cookbook, or even the expression of the steps in a particular recipe — for example, several cooking blogs don’t lay out recipes in the traditional way, but include commentary, photos, and other descriptions incorporated into the instructions — the underlying recipe itself is not copyrightable.

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You can’t trademark the sound of a motorcycle engine.

It is really difficult to trademark a sound. Although NBC managed to successfully acquire a trademark for its chimes, there aren’t a ton of trademarked sounds. Some of the ones that appear in the USPTO database for soundmarks are accompanied by words or a catchphrase as part of a jingle. In order to be eligible for a soundmark, the sound must be “so inherently different or distinctive that it attaches to the subliminal mind of the listener, to be awakened when heard, and to be associated with the source or event.” Yes, there are several examples of registered soundmarks, but in the world of intellectual property, it appears that there’s actually a fairly high threshold that must be satisfied. A consumer must automatically associate that sound with the particular product.

Famously, Harley Davidson tried to register a trademark for the sound of its engine. Other motorcycle companies immediately filed oppositions to Harley Davidson’s applications, noting that their engines made the same sound. Years of litigation later, Harley Davidson voluntarily withdrew the application.

Trump was denied a trademark for the phrase “You’re Fired.”

I wanted to say that you can’t trademark commonly used phrases, but that’s not really accurate.

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Instead, I point you to the denial of Donald J. Trump’s application for the trademark “You’re Fired.”

Trump tried to trademark the catchphrase “You’re Fired” during the first season of the show The Apprentice and was denied. I remember hearing about this case in the news way back before I even started law school and thought it was the right result because of its common usage. Actually, that’s not at all the reason for the rejection. Instead, USPTO felt that the phrase was too similar to the trademarked phrase “You’re Hired,” registered for use in a board game.

These are just a few examples where courts or regulatory agencies had to step in and say that copyright or trademark protections where not appropriate. Of course, what this list doesn’t cover are the really dumb things that people have successfully been able to gain intellectual property rights for…

Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at kristay@gmail.com.

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