The Law on the protection of recipes and culinary creations registered at the National Assembly on April 30, 2019 (No. 1890) will not fail to surprise all those who are interested in intellectual property, because they know well that the judgment of November 13, 2018 issued by the Court of Justice, closed the way of copyright to culinary flavors (CJEU, Nov. 13, 2018, aff. C 310/17).
But it is not copyright that is mobilized by the bill since it aims to institute a title of property sui generis (which can be described as intellectual despite its strange insertion in the heritage code), the “certificate of culinary creation” issued by the director of the National Institute of Certified Culinary Creation, a public administrative establishment ad hoc and simultaneously created.
This title, which would last 20 years, would be issued to its creator or beneficiary or to the employer of the salaried creator to cover a culinary creation (and not a simple foodstuff) which must first be “new”, i.e. not included in the culinary prior art, the latter being made up of everything that was made available to the public before the date of filing of the application for a certificate of culinary creation by a written or oral description, use or any other means.
Two other conditions must be met. First, the culinary creation must involve a “creative activity”, defined by this text as a non-obviousness for the person skilled in the art, which corresponds exactly to the legal definition of inventive step in patent law to make the term “creative activity” misleading. Finally, the culinary creation must present a “proper gustatory character” in order to give an overall impression of “not already tasted”, this time referring to the condition of proper or individual character of the design law.
One doubts very much that this curious mixture of patent law and design law is in good taste and if, as is often the case, the referral of this proposal to the committee should sound its death knell, one will hardly regret it.
Charles de Haas
Avocat (Paris Bar)