January 14, 2019

Facts

“Heksenkaas” was a spreadable dip containing cream cheese and fresh herbs, created by a Dutch retailer in 2007.  In 2011, the creator of Heksenkaas transferred his IP rights in the product to the claimant, Levola Hengelo BV.

In January 2014, the defendant, Smilde Foods BV, began manufacturing a product called “Witte Wievenkaas” for a supermarket chain in the Netherlands.

Levola issued proceedings in the Netherlands against Smilde claiming that the production and sale of Witte Wievenkaas infringed its copyright in the “taste” of Heksenkaas.

Levola argued that copyright in a taste referred to the “overall impression on the sense of taste caused by the consumption of a food product, including the sensation in the mouth perceived through the sense of touch”.  It asked the court to rule that: (i) the taste of Heksenkaas was its manufacturer’s own intellectual creation and was therefore eligible for copyright protection as a “work”; and (ii) the taste of the product manufactured by Smilde was a reproduction of that work.

Hearing the case on appeal, the Court of Appeal in the Netherlands asked the Court of Justice of the European Union whether the taste of a food product was capable of being protected by copyright under the Copyright Directive (2001/29/EC).

Decision

The main question was whether a taste could be classified as a “work” under the Directive.   To qualify as a work, the CJEU said that the subject matter had to be original, in the sense that it was the author’s own intellectual creation, and it had to be the expression of such intellectual creation.

The CJEU noted that, under Article 2(1) of the Berne Convention, literary and artistic works included everything in the literary, scientific and artistic domain, whatever the mode or form of its expression might be.   Further, under Article 2 of the WIPO Copyright Treaty and Article 9(2) of the TRIPS Agreement, copyright protection could be granted to expressions, but not to ideas, procedures, methods of operation or mathematical concepts.

Therefore, the CJEU said, for something to qualify as a “work”, it had to be expressed in such a way as to make it identifiable, with sufficient precision and objectivity, whether in permanent form or not.  Enforcement authorities, as well as economic operators and individuals, had to be able to identify, clearly and precisely, what it was that third parties, especially competitors, were claiming protection in.  Objectivity and precision were important to avoid any element of subjectivity.

In the CJEU’s view, the taste of a food product could not be pinned down with precision and objectivity.  Unlike a literary, graphic, cinematographic or musical work, which was a precise and objective form of expression, the taste of a food product was essentially identified on the basis of taste sensations and experiences.  These were necessarily subjective and variable since they depended, inter alia, on factors particular to the person doing the tasting, such as age, food preferences and consumption habits, as well as on the environment or context in which the product was consumed.  In addition, the CJEU said, it was not technically possible to identify precisely and objectively the taste of a food product in such a way as to distinguish it from the taste of other products of the same kind.

Accordingly, the CJEU found that the taste of a food product could not be classified as a “work” within the meaning of the Directive.

To ensure harmonisation across Member States, the CJEU also found that the Directive prevented national legislation from being interpreted in such a way as to grant copyright protection to the taste of a food product.  (Case C-310/17 Levola Hengelo BV v Smilde Foods BV EU:C:2018:899 (13 November 2018) — to read the judgment in full, go to the curia search form, type in the case number and follow the link).