Food for thought – Article from #2 2019

The purpose of the article is to assess which areas of IP law, if any, and under which criteria, offer legal protection for signature dishes and plating arrangements that are identified and commonly associated with a specific chef or restaurant. The two main concepts explored in the article are: (i) the question whether food can be considered as art for purposes of copyright; and (ii) whether the avenue of trade dress as suggested by scholars in the U.S. hold equal promise under EU trade mark and design law. The outcomes within the respective spheres of copyright, trade mark and design law have proven in the affirmative; i.e. in principle protection is available for signature dishes and plating, subject to certain qualifications. However, it is found that potential IP right holders in the culinary industry elect not to acquire and/or enforce these rights. The question whether IP offers protection for signature dishes and plating remains answered from a theoretical point of view and legal certainty will only be achieved once the CJEU gives a decision on the matter – which in turn would only occur if the identified potential IP right holders start to litigate in an attempt to potentially enforce their rights.