Intellectual Property Update: Spread The Word – ‘Taste Of Food Products’ Off the Menu for Copyright Protection
19 November 2018
‘Heksenkaas’ is a spreadable dip with cream cheese and fresh herbs, which was created in 2007 by Levola, a Dutch retailer of vegetables and fresh produce. Smilde is the manufacturer of a similar product, ‘Witte Wievenkaas’.
Levola, sought an order preventing Smilde from selling its product on the basis of similar taste. Levola claimed that the taste of ‘Heksenkaas’ is a work protected by copyright and that the taste of ‘Witte Wievenkaas’ is a reproduction of that work. The question of whether the taste of a product could be protected by copyright under copyright legislation was referred to the Court of Justice of the European Union (CJEU) by the Dutch Regional Court of Appeal.
Levola argued that the copyright in a taste refers to the ‘overall impression on the sense of taste caused by the consumption of a food product, including the sensation in the mouth perceived through the sense of touch’. It relied by analogy on a Dutch Supreme Court judgment involving Lancôme, which accepted in principle the possibility of copyright protection of the scent of a perfume.
The CJEU confirmed that there are two cumulative conditions which must be satisfied in order for subject matter to be classified as a “work” for the purposes of copyright protection:
- The subject matter concerned must be original in the sense that it is the author’s own intellectual creation; and
- Only something which is the expression of the author’s own creation may be classified as a ‘work’.
The CJEU also noted that the EU is obliged to consider the provisions of the WIPO Copyright Treaty which indicates that copyright protection may be granted to expressions, but not to ideas, procedures, methods of operation or mathematical concepts as such.
The CJEU held that “for there to be a ‘work’ as referred to in the Directive, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity.”
In that regard, the CJEU found that the taste of a food product cannot be identified with precision and objectivity. Unlike, for example, a literary, pictorial, cinematographic or musical work, which is a precise and objective expression, the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable. They depend on, amongst other things, factors particular to the person tasting the product concerned, such as age, food preferences and consumption habits.
This decision provides further welcome confirmation on the scope of protection of copyright and the various works which may attract copyright protection.
The CJEU’s decision, whilst perhaps an expected result, will provide clarity for the food and drinks industry on the scope of protection for such products. Taste is subjective and cannot be identified precisely.
The next question is what are the implications of this decision for other potentially subjective traits, such as smells. It is worth noting that the Court of Cassation, the national Supreme Court of France, has categorically rejected the possibility of granting copyright protection to a scent although the Dutch Supreme Court has not done so. This divergence in national case law may lead to scents being the subject matter of a future CJEU decision on this topic.
For more information on copyright protection, contact a member of our Intellectual Property team.
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