Protecting “le Crunch” – copyright in feelings and experiences?

11 October, 2019

Finding a USP is key to differentiating a food or drink product for a launch or promotion, and, in common with other industries, food and drink producers are looking to all of aspects of their offering to see what makes them special.  Making consumption of a product part of, or linked to, an “experience” is increasingly popular. 

 

One relatively new trend in food marketing and on-line promotion is ASMR (Autonomous Sensory Meridian Response), a pleasurable experience akin to “goosebumps” or shivers down your spine, triggered by certain sounds and sometimes accompanied by soothing video.  Whilst ASMR can result from sounds such as nails being tapped or scratched on particular surfaces, its use in food – chewing, crunching, slurping – has spawned an internet sensation, particularly on YouTube.  There is even a “community” of YouTubers known as ASMRtists.  However, ASMR cannot be experienced by everyone.

 

Although the products used have not been designed specifically to create ASMR, product design and development generally takes time and money, and the understandable desire to protect an often substantial investment in product, brand and marketing, in conjunction with the development of new media and technologies, is leading producers to test the boundaries of intellectual property law.  Whilst certain aspects of an experience will attract legal protection (for example, copyright in music and trademark protection for shapes), other aspects (such as smells and sounds) are very difficult to register because of the requirement that the trademark be capable of being represented graphically. However, recent cases have tried to expand this.  In non-food, the scent of perfume was held by a Dutch Court to be capable of copyright protection,  although a more recent attempt to claim such protection for the taste of a cheese spread failed due to lack of an ability, given the current state of science in this area, to precisely identify a particular taste, and so differentiate it from other tastes.  Whilst a claim for protection of an ASMR experience may currently struggle on similar grounds, if the means of recording the experience in measurable and demonstrable way can be found, then it does raise the question of whether the law could be expanded in this way.

 

For further information or advice on branding and all aspects of intellectual property law, please contact Kathryn Rogers on 01892 506 147 at kathryn.rogers@crippspg.co.uk or visit our website at www.crippspg.co.uk.