The taste of a food product is not eligible for copyright protection, the Court of Justice of the European Union has ruled.
The case cropped up following proceedings launched by the producers of ‘Heksenkaas,’ a spreadable dip with cream cheese and fresh herbs, which was created in 2007 by a Dutch retailer of vegetables and fresh produce.
The intellectual property rights of that product were transferred by the retailer to the current rightholder, Levola, a company governed by Dutch law.
Since January 2014, Smilde, a company also governed by Dutch law, had been manufacturing a product called ‘Witte Wievenkaas’ for a supermarket chain in the Netherlands.
Levola took the view that ‘Witte Wievenkaas’ infringed its copyright in the taste of ‘Heksenkaas’ and asked the Dutch courts to order Smilde to cease production and sale of that product. Levola argued that the taste of ‘Heksenkaas’ was a work protected by copyright and that the taste of ‘Witte Wievenkaas’ was a reproduction of that work.
The Regional Court of Appeal, Arnhem-Leeuwarden, of the Netherlands, asked the EU Court of Justice whether the taste of a food product could be protected under the Copyright Directive.
In reply the EU Court said that in order to be protected by copyright, the taste of a food product must be capable of being classified as a ‘work’ within the meaning of the Directive.
"Copyright protection may be granted to expressions, but not to ideas, procedures, methods of operation or mathematical concepts as such," the court said.
The product protected by copyright must be expressed in a manner which made it identifiable with sufficient precision and objectivity.
The taste of a food product could not be identified with precision and objectivity
The Court found that the taste of a food product could not be identified with precision and objectivity.
Unlike, for example, a literary, pictorial, cinematographic or musical work, which was a precise and objective expression, the taste of a food product would be identified essentially on the basis of taste sensations and experiences, which were subjective and variable. They depended 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 was consumed.
Moreover, it was 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 enabled it to be distinguished from the taste of other products of the same kind.
The court concluded that the taste of a food product could not be classified as a ‘work’ and consequently was not eligible for copyright protection under the directive.
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