In its decision C-310/17 of November 13, 2018, the Court of Justice decided that the taste of a food product cannot be protected by copyright. Following Advocate General Wathelet’s opinion, the Court considers that the taste of a food product cannot be qualified as a « work ».
The conflict between Levola and Smilde is a well-known IP saga in the Benelux. ‘Heksenkaas’ is a spreadable dip with cream cheese and fresh herbs, which was created in 2007 by a Dutch retailer of vegetables and fresh produce. Dutch company Levola aquired the IP rights. Since January 2014, Dutch Company Smilde, has been manufacturing a product called ‘Witte Wievenkaas’ for a supermarket chain in the Netherlands.
Considering that the sale of ‘Witte Wievenkaas’ infringed Levola’s copyright in the taste of ‘Heksenkaas’, it sued Smilde before the Dutch courts. Levola claimed that the taste of ‘Heksenkaas’ is a work protected by copyright and that the taste of ‘Witte Wievenkaas’ is a reproduction of that work.
The Regional Court of Appeal of Arnhem-Leeuwarden refered a preliminary question to the ECJ, asking whether the taste of a food product can be protected under the Copyright Directive.
In Advocate General Wathelet’s opinion this is denied. Following the opinion of its AG, the Court considers that, in order to be protected by copyright under the Directive, the taste of a food product must be capable of being classified as a ‘work’ within the meaning of the Directive.
This requires, on the one hand, that the subject matter concerned is an original intellectual creation and, on the other hand, that there must be an ‘expression’ of that original intellectual creation in a manner which makes it identifiable with sufficient precision and objectivity.
According, amongst others, to international treaties such as TRIPS and the WIPO Copyright Treaty, copyright protection may be granted to expressions, but not to ideas, procedures, methods of operation or mathematical concepts as such.
The Court finds that the taste of a food product cannot be identified with precision and objectivity since it will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable, depending on the feeling of the concerned person.
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.
Based on these considerations, the Court of Justice concludes that the taste of a food product cannot be classified as a ‘work’ and consequently is not eligible for copyright protection under the Directive.
See decision ECJ C-310/17 Levola Hengelo
See AG Wathelet’s opinion