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Cheesy Taste - Part 2

Readers of this publication may recall that earlier this autumn I commented on a case pending before the Court of Justice of the European Union ("CJEU"), concerning whether the taste of a food product can qualify for copyright protection in any of the EU Member States (Case C-310/17 Levola Hengelo).

The case in question concerns cheese. In summary, Levola makes a cheese called Heksenkass. It brought a case before the Dutch Courts, alleging that Smilde Foods had produced a rival cheese (called Witte Wievenkass) that tasted the same as Heksenkass, and thus infringed its copyright in the taste of Heksenkass.  The Dutch Court of Appeal referred the matter to the CJEU, asking various questions, including whether the taste of a product can be granted copyright protection.

In July of this year the Advocate General gave his opinion.  His view was that the taste of a food product is not eligible for copyright protection under EU copyright law, as taste is subjective and depends on the taster and their environment, and thus taste is legally uncertain in scope.         

This week the CJEU handed down its decision. Unsurprisingly, it agreed with the Advocate General and held that the taste of a food product cannot be classified as a 'work' that qualifies for copyright protection.

The CJEU held that for a 'work' to be protected by copyright it must be 'original', in the sense that it has not been slavishly copied from an earlier work and it must be the author's own intellectual creation. Second, it must be the 'expression' of the author's own intellectual creation. In other words, mere ideas per se are not entitled to copyright protection. Third, for there to be a 'work', the subject matter protected by copyright must be "expressed in a manner which makes it identifiable with sufficient precision and objectivity", even if that expression is not necessarily in a permanent form.

It held further that the taste of a food product cannot be pinned down with precision and objectivity. The taste of a food product is identified 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 in question, 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.

Many readers may not be surprised by the CJEU's decision. Taste is subjective and (at present) technology does not enable it to be identified precisely. But the case has wider implications beyond just food (and drink) products. The reasoning of the case can be applied, by way of analogy, to the smell of a product, for example, the scent of a perfume. Such smells cannot, at present, be registered as trade marks. Nor, it would seem, are they eligible for copyright protection.