Gli alimenti come opere d’arte? Certezza del diritto e sviluppo economico nella recente sentenza Levola della Corte di giustizia

This comment to the ECJ judgment “Levola” highlights three consequences of the case: 1) the interpretation of the notion of “literary or artistic work” given by the Court extends the area of copyright; according to the ECJ it can be applied also to industrial products, if they are the expression of the originality of the author; 2) food taste cannot be protected by copyright, because it cannot be described in an objective way; this statement of the Court arises problems with regard to the difference between the evaluation of a “taste” and the similarity of products / trademarks and the relevance of organoleptic tests provided by other food regulations; 3) the exclusion of “taste” from the ambit of patents and other IP rights underlines the weakness of the food sector in the sense that foodstuff cannot be an “engineered product” and that food regulations do not allow a lack of transparency in this specific production chain. The author hopes that the Court will change its point of view, taking into a greater consideration the function of the organoleptic tests under other food regulations, and, as a consequence, their role in the IP rights protection. Otherwise food business operators will have no other options than the protection offered by unfair completion rules, regarded as weaker than IP rights.