The Court of Justice of the European Union (CJEU) has recently been asked to decide whether the taste of a particular cheese is protected by copyright. While deciding that the taste of the cheese in this case was not protected by copyright, the CJEU very much opened the door for works, which conventionally may not have been considered for copyright protection, to be protected.

The Court set out the test for copyright protection as being an original work which was, “…expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form…”.

While the taste of the cheese in this case was said to be too subjective to qualify for protection, there is no reason in principle why objectively measurable works such as smells could not be protected by copyright. This potentially opens up the scope of copyright protection which, UK lawyers at least, had tended to think of as being limited to well established categories such as literary, artistic, musical and dramatic works. Indeed, there is no reason why if a taste could be objectively measured then it could not qualify for copyright infringement.

The dispute

The CJEU was asked by the Netherlands’ Court of Appeal to rule on whether the taste of a food, in this case a cream cheese and herb dip, could be protected under the Copyright Directive. The dip in dispute, Heksenkaas (witches’ cheese), was created by a Dutch retailer in 2007. The intellectual property rights were then transferred to the current rights holder, Levola.

Levola argued that another cheese, Witte Wievenkaas (wise-women’s cheese), had infringed its exclusive right of reproduction, protected under Art 13 Dutch Copyright law. Levola argued that taste, like a literary or artistic work, can and should be protected as a copyright work. One of the main grounds of Levola’s argument was taken from Lancôme v. Kecofa (2006). Here the Dutch Supreme Court had held that the scent of a perfume could be protected by copyright. The maker of Witte Wievenkaas resisted the case and argued that the instability of a food product, and the subjective nature of the taste experience, precludes it from copyright protection.

Can the taste of cheese constitute a “work”?

This ruling concerns the interpretation of the concept of a “work”, as referred to in Directive 2001/29/EC (the Copyright or InfoSoc Directive). The key question was whether “taste” in itself can be the subject of copyright protection.

The expression “literary and artistic works” in Article 2(1) of the Berne Convention included “every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression”, but the CJEU considered that the examples cited in that provision related only to creations which can be perceived by sight and/or by hearing and not by taste. The taste of a food product could therefore not be protected by copyright under the Copyright Directive because it could not be expressed in a manner which made it identifiable with sufficient precision and objectivity to be considered a “work” under the Copyright Directive.

In its reasoning, the CJEU concluded that taste is very highly subjective and would cause significant difficulties when defining the scope of the subject matter that was to be protected and in assessing whether or not the taste of a second product was an infringement. The CJEU said the taste of food was too “subjective and variable” for it to meet the requirements for copyright protection. It was not possible for the taste of food to be “pinned down with precision and objectivity”, and taste cannot be classed as a “work” under EU copyright laws.

The CJEU said that unlike “a literary, pictorial, cinematographic or musical work, which is a precise and objective form of expression, the taste of 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, 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.

Watch this space

While the CJEU concluded that the taste of a food product cannot be classified as a “work” within the meaning of Directive 2001/29, it did not completely close the door on taste claims in the future. It is perfectly conceivable that as technology moves on it may be possible to obtain a precise and objective identification of a particular taste and if that is the case there is no reason why taste cannot be protected by copyright.

Levola Hengelo BV v Smilde Foods BV (C-310/17) EU:C:2018:899; [2018] 11 WLUK 155 (ECJ)

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