Rebecca Henderson

Background

Levola - the maker of Dutch cream cheese “Heksenkaas” which is a popular spreadable dip made with cream cheese and herbs - has been creating and selling its product since 2007. In 2014, Smilde, began selling a similar product called “Witte Wievenkaas” to a supermarket chain in the Netherlands.

Levola raised a claim against Smilde claiming that the production and sale of “Witte Wivenkaas” infringed its copyright in the taste of Heksenkaas. However, Smilde argued that a taste in itself cannot be protected by copyright.

The case was originally dismissed by a Dutch tribunal on the grounds that the taste of “Heksenkaas” “lacked originality and personal character”. Levola chose to appeal the decision to the European Courts, with the Attorney General and CJEU being asked to consider whether the taste of a food product can be protected under the EU Copyright Directive (Directive 2001/29/EC).

CJEU Decision

In its assertation that the taste of food is not a protectable copyright work, the CJEU considered the definition of ‘work’ within the meaning of the Copyright Directive:

Under the Copyright Directive the classification of something as a ‘work’ requires two important elements:
(1) the subject matter must be “an original intellectual creation”, and

(2) it must be considered an “expression” of that original intellectual creation.

Considering this in line with the Agreement on Trade-Related Aspects of Intellectual Property Rights and the WIPO Copyright Treaty, the CJEU commented that protection is granted to expressions and not to ideas, a work therefore must be expressed in a way which makes it “identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form”.

The CJEU commented that when you consider a literary work or musical work you are able to determine the precise and object expression of that work. In contrast, the taste of a food product can be “subjective or variable” depending on a variety of factors. For example, a person’s age, food preferences or even the environment in which a product is consumed can alter the way that we taste.
The CJEU therefore found that as you cannot pin down a taste with any “precision or objectivity”, the taste of a product cannot be classified as a “work” and as a result cannot benefit from copyright protection under the Copyright Directive.

Attorney General

This decision follows the line of reasoning presented by the Advocate General who considered that the Copyright Directive only currently covers “works” that can either be perceived either visually or audibly and does not account for any other senses (i.e. taste or smell).

Conclusion

Considering the CJEU’s reasoning, this does seem a sensible decision. If we cannot clearly identify the subject matter that we want to protect using copyright, how could you identify that it had been infringed?

However, Playdough was recently successful in establishing a trade mark in relation to its smell.

Perhaps in the future we will be able to pinpoint the effects of particular senses such as taste. This is something which both the CJEU and Attorney General commented upon given the current “state of scientific development”. Therefore, as technology progresses perhaps one day our senses will be capable of copyright protection.

Rebecca Henderson is a solicitor and Jennifer Dool a trainee at MacRoberts