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The taste of a food product cannot be covered by copyright protection (ECJ C-310/17, Heksenkaas)

Pierantonio Paulon

Pierantonio Paulon

Italian attorney-at-law (avvocato)

In its judgement of November 13th, 2018 (case C-310/17, Levola Hengelo BV v Smilde Foods BV), the Court of Justice of the European Union deals with the interesting issue of the protection of an important aspect of a food product, namely the taste, concluding that the taste of a food product is not eligible for copyright protection, since it cannot by classified as “work“.

The case

The Dutch company Levola Hengelo BV holds the property rights in ‘Heksenkaas” (i.e. “Witches’ cheese”), a spreadable cheese with fresh herbs, invented in 2007 by a Dutch retailer of vegetables and fresh product. A patent for the method of manufacturing Heksenkaas was granted in 2012 and the word mark ‘Heksenkaas’ was filed mid-2010. In 2014, the Dutch company Smilde Foods BV started producing a product called “Witte Wievenkaas” for a supermarket chain in the Netherlands. Levola took action against Smilde before the Rechtbank Gelderland (Gelderland District Court), asking it to rule, first, that the taste of Heksenkaas was its manufacturer’s own intellectual creation, and therefore benefited from copyright protection as a ‘work’ within the meaning of Dutch Copyright Law and, secondly, that the taste of the product manufactured by Smilde constituted a reproduction of that ‘work’. Levola also applied to that court for an order requiring Smilde to cease and desist from production, purchase, sale and any other marketing of its “Witte Wievenkaas”. The court of first instance, withouth directly addresing the question at issue in this judgement of the ECJ, rejected Levola‘s claim on the ground of lack of evidence, from  Levola‘s  side, of which elements, or combination of elements, of the taste of Heksenkaas gave it its own original character. The case was then brought by Levola before the Gerechtshof Arnhem-Leeuwarden (Court of Appeal, Arnhem-Leeuwarden, Netherlands), which  considered that, in order to determine the case before it, it was necessary for it to ascertain, inter alia, whether EU law, and in particular Directive 2001/29, precludes the copyright protection of the taste of a food product. The referring judge observe the divergence existing in the case-law of the national supreme courts of the European Union when it comes to the similar question as to whether a scent may be protected by copyright. In its judgment of 16 June 2006, for example, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) – in the case Lancômeaccepted in principle the possibility of recognising copyright in the scent of a perfume, while the Cour de cassation (Court of Cassation, France) has categorically rejected the possibility of granting copyright protection to a scent in its judgment of December 10th, 2013 (FR:CCASS:2013:CO01205).

The decision

The Court of Justice, after stressing that the concept of “work” must normally be given an autonomous and uniform interpretation throughout the European Union, considered that the taste of a food product can be protected by copyright under Directive 2001/29 only if such a taste can be classified as a ‘work’ within the meaning of the directive. In that regard, the Court of Justice reminds of the two conditions which has to be met, i.e., the subject matter must be 1) original in the sense that it is the author’s own intellectual creation and 2) expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form. The Court of Justice considers that a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable since they depend, inter alia, on factors particular to the person tasting the product concerned and the context in which the product is consumed, and that 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, even though that expression is not necessarily in permanent form. The Court then concluded that:

Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as precluding (i) the taste of a food product from being protected by copyright under that directive and (ii) national legislation from being interpreted in such a way that it grants copyright protection to such a taste.

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