On November 13, 2018, the European Court of Justice issued its judgement in a case involving a spreadable cream cheese, ruling that it is not eligible for protection under copyright. The Court said the taste of a food product cannot be classified as a ‘work’ as it is too subjective and variable for it to meet the requirements for copyright protection. In 2014, instead, the U.S. Trade Mark Court (New York, Pizzeria Inc. v. Ravinder Syal et al. – 3:13-CV-335 – U.S.D.C. S.D. Texas) had recognised protection to the taste of a pizza sold by a company called New York Pizzeria. In this case the Court had emphasized that particolar kinds of flavours are eligible for protection as a trademark on condition that they have distinctive capacity and thus that they have become suitable to be associated to their entrepreneurial origin and that they are not functional elements to the product that they distinguish.Also in Europe attempts have have been made to protect flavour resorting to non conventional trademarks.A first case (Eli Lilly v. OHIM- R120/2001) involved a trademark application seeking to register the taste of an ‘artificial strawberry flavour’ as a olfactory trade mark for medicinals. The Board of Appeals at the OHIM had however rejected such trademark application ruling that the strawberry flavour was not eligible to distinguish the product from those of other competing undertakings, nor perceivable by the consumer as a trademark. Moreover the Court added that the registration of a flavour had to be in any case excluded because the requirement (necessary for all kinds of trademarks) of graphic representability of the mark was not satisfied.The topic of graphic representability of non conventional trademarks and in particolar olfactory signs, has been dealt with in a judgment by the ECJ (Sieckmann – C-273/00). The subject matter of that case was a trademark application for a particular ‘fruity balsamic scent with a slight hint of cinnamon’ whose graphic representation was represented by an odour sample of the sign in a container that the applicant submitted with his registration application. The ECJ however, took the view that such odour was not eligible for registration because the requirement of graphic representability of the mark was not satisfied. In particolar the Court of Justice emphasised that a chemical formula could not reproduce the odour of a substance, but just gives indications about the substance as such. Likewise the requirement of the graphic representability cannot be satisfied neither by the deposit of an odour sample in a container, because this is not stable and long lasting.The new EC Trademark Regulation n. 2017/1001 has however abrogated the requirement of ‘graphic representability’ therefore presently a sign can be registered if it is represented ‘in such a way as to allow the competent authority and the consumer to clearly and precisely determine the object of the protection guaranteed to the trademark owner’.