IP Law Daily, COPYRIGHT NEWS: Taste of food product not a copyrightable ‘work’ under EU law, (Nov 15, 2018)

By Thomas Long, J.D.

The taste of a spreadable dip made from cream cheese and fresh herbs, called "Heksenkaas," could not be considered a "work" within the meaning of the European Union’s Copyright Directive and therefore was not eligible for copyright protection, the EU’s Court of Justice has decided. Because the taste of a food product cannot be identified with precision and objectivity, it cannot meet the definition of an "expression" of an intellectual creation. The Court of Justice issued its opinion in response to a question from a Dutch regional court that is adjudicating a dispute between two competing food companies in the Netherlands (Levola Hengelo BV v. Smilde Foods BV, November 13, 2018).

Heksenkaas was created in 2007 by a Dutch retailer of vegetables and fresh produce. The intellectual property rights in the product were transferred by the retailer to another Dutch company, Levola Hengelo BV. In 2014, Smilde Foods BV started making a product called "Witte Wievenkaas" for a supermarket chain in the Netherlands. Levola brought an action in Dutch courts seeking an order requiring Smilde to cease making Witte Wievenkaas because, according to Levola, Smilde’s product infringed its copyright in the taste of Heksenkaas. Levola contended that the taste of a food product may be classified as a work of literature, science, or art that is eligible for copyright protection. In support of this argument, Levola pointed out that in a 2006 case the Supreme Court of the Netherlands accepted in principle the idea that the scent of a perfume could be protected by copyright. The Regional Court of Appeal in Arnhem-Leeuwarden, Netherlands, asked the Court of Justice to provide guidance as to whether the taste of a food product can be protected under the Copyright Directive.

The Court of Justice explained that to be protected by copyright under the Directive, the taste of a food product would have to be classifiable as a "work" within the meaning of the Directive. Classification as a "work" requires that (1) the subject matter at issue is an original intellectual creation and (2) there is an "expression" of that original intellectual creation. Copyright protection may not be granted to ideas, procedures, methods of operation, or mathematical concepts, but only to particular expressions. Accordingly, the court said, for something to be a "work" under the Directive, it must be expressed in a manner that makes it identifiable with sufficient precision and objectivity.

The taste of a food product does not meet this standard, in the court’s view. Tastes cannot be identified precisely and objectively, unlike literary, pictorial, cinematographic, and musical works. Someone eating a food product would identify its taste on the basis of subjective sensations and experiences, which will vary from person to person. These experiences will depend on such factors as the person’s age, food preferences, and consumption habits, as well as on the environment or context in which the product is consumed. Moreover, there is no currently available technology or science by which a precise and objective identification of the taste of a food product can be made that would enable 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 protected by copyright under EU law. The court also explained that the Directive prevents the laws of individual member states from being interpreted in such a way that they grant copyright protection to the taste of a food product.

The Court of Justice’s ruling was preliminary in nature and did not decide Levola and Smilde’s dispute itself. It is now up to the Dutch court to dispose of the case in accordance with the Court if Justice’s decision, which is binding on other national courts or tribunals before which a similar issue is raised.

The case is No. C-310/17.

Attorneys: S. Klos, A. Ringnalda, and J.A.K. van den Berg for Levola Hengelo BV. T. Cohen Jehoram and S.T.M. Terpstra for Smilde Foods BV.

Companies: Levola Hengelo BV; Smilde Foods BV

News: Copyright