With autumn now upon us, I wanted to talk about a case that was reported in late July, but which may have got overlooked by many as a result of the summer holidays.
In summary, as the law currently stands, it is not possible to register lawfully, anywhere in the EU, the taste of a product as a registered trade mark. But can such a taste qualify for copyright protection?
That, in a nutshell, is what the Court of Justice of the European Union ("CJEU") has been asked to decide, in a case referred to it by the Dutch Court of Appeal (Case C-310/17 Levola Hengelo).
In summary, Levola makes a cheese called Heks'nkass. 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 Heks'nkass, and thus infringed its copyright in the taste of Heks'nkass. 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.
Whilst the CJEU has yet to hand down its decision, on 25 July the Advocate General gave his opinion. He held that the question of what does (and what does not) qualify as a 'copyright work' is to be answered by the CJEU, in order to ensure harmonisation across the EU. His view was that the taste of food is not eligible for copyright protection under EU copyright law. Whilst not explicitly excluded under either the Information Society Directive nor the Berne Convention, the Advocate General noted that no provision in any international legal treaty explicitly gave copyright protection to the taste of a product (nor to smells, for example, perfume fragrances). Traditionally, copyright protection had only been granted to works that could be seen or heard (for example, books and sound recordings).
He also made an analogy with an old EU registered trade mark case (called Sieckmann), in which it was held that a smell cannot be registered as a trade mark, because (inter alia) it is not clear, precise and objective. He held that the same principles applied when it came to copyright protection - which should not be given to tastes, as they are subjective and depend on the taster and their environment, and thus are legally uncertain in scope.
The next stage is for the CJEU to hand down its decision - and more often than not it agrees with the Advocate General.
Many readers may not be surprised (but, perhaps, some may be disappointed) by the Advocate General's opinion. Taste is subjective and (at present) technology does not enable it to be identified precisely. But if the CJEU follows the Advocate General's opinion it will mean that there are no registerable IP rights in the EU that protect the mere taste of a product. Whether that is a good or bad thing is open to debate….but for some it may leave a bad taste in the mouth.