No copyright protection for the taste of a food product

‘Heksenkaas’ is a spreadable dip with cream cheese and fresh herbs, which was created in 2007 by a Dutch retailer of vegetables and fresh produce. The intellectual property rights in that product were transferred by the retailer to the current rightholder, Levola, a company governed by Dutch law.

Since January 2014, Smilde, a company governed by Dutch law, has been manufacturing a product called ‘Witte Wievenkaas’ for a supermarket chain in the Netherlands.

As Levola took the view that the production and sale of ‘Witte Wievenkaas’ infringed its copyright in the taste of ‘Heksenkaas’, it asked the Dutch courts to order Smilde to cease, inter alia, production and sale of that product. Levola claims that the taste of ‘Heksenkaas’ is a work protected by copyright and that the taste of ‘Witte Wievenkaas’ is a reproduction of that work.

Hearing the case on appeal, the Gerechtshof Arnhem-Leeuwarden (Regional Court of Appeal, Arnhem-Leeuwarden, Netherlands) has asked the Court of Justice whether the taste of a food product can be protected under the Copyright Directive.

In the  judgment C-310/17 of November 13, 2018, the Court makes clear that, in order to be protected by copyright under the Directive, the taste of a food product must be capable of being classified as a ‘work’ within the meaning of the Directive. Classification as a ‘work’ requires, first of all, that the subject matter concerned is an original intellectual creation. Secondly, there must be an ‘expression’ of that original intellectual creation.

In accordance with the Agreement on Trade-Related Aspects of Intellectual Property Rights, and with the WIPO Copyright Treaty, copyright protection may be granted to expressions, but not to ideas, procedures, methods of operation or mathematical concepts as such.

Accordingly, 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 Court 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, as well as on the environment or context in which the product is consumed.

Moreover, it is not possible in the current state of scientific development to achieve by technical means a precise and objective identification of the taste of a food product which enables it to be distinguished from the taste of other products of the same kind.

Accordingly, the Court concluded that the taste of a food product cannot be classified as a ‘work’ and consequently is not eligible for copyright protection under the Directive.

The taste of a food product can therefore not be classified as a ‘work’

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