TASTY, BUT NOT ENOUGH TO BE A WORK OF ART. What about copyrighted spices?

This article first appeared in Bugnion Journal – To view the Journal in full click here

The Court of Justice of the EU recently ruled on a case concerning the possibility of claiming a copyright on the taste of a food product. The subject of the dispute was “Heksenkaas”, a Dutch spreadable dip containing cream cheese and fresh herbs, whose IP rights had been transferred to Levola Hengelo BV.

Claiming that a product called “Witte Wievenkaas” infringed its copyright in the taste of Heksenkaas, Levola brought proceedings against the manufacturer of the former before the Gelderland District Court, Netherlands.

The court of first instance held that it was not necessary to rule on whether the taste of Heksenkaas was protectable under copyright law, given that Levola’s claims had to be rejected since it had not specified which elements of the taste of Heksenkaas gave it its unique, original character and personal stamp.

This decision was appealed before the Regional Court of Appeal, Arnhem-Leeuwarden, Netherlands, which decided to stay the proceedings and refer a series of questions to the Court of Justice for a preliminary ruling concerning whether EU law precludes the taste of a food product being granted copyright protection.

In requesting the preliminary ruling, the referring court cited a divergence in the case-law of national supreme courts of the EU when it came to the question – similar to the one concerning the possibility of copyrighting tastes – as to whether a scent may be protected by copyright.

In particular, the referring court cited a judgment of the Supreme Court of the Netherlands that accepted, in principle, the possibility of recognizing copyright in the scent of a perfume and a decision of the French Court of Cassation that categorically rejected the possibility of granting copyright protection to a scent.

In examining the matter, the CJEU first took into consideration Directive 2001/29, noting that the directive does not leave it up to the laws of Member States to determine the meaning and scope of the concept of a “work”, which must therefore have an autonomous and uniform interpretation throughout the EU.

The CJEU stated that the taste of a food product can be protected by copyright under Directive 2001/29 only if the two cumulative conditions for a certain subject matter to be classified as a “work” (set out by the directive itself and the relevant case-law on the matter) are satisfied. More precisely, the subject matter must (i) be original in the sense that it is the author’s own intellectual creation; and (ii) be the expression of the author’s own intellectual creation.

In addition to the above, the CJEU noted that, in light of the Berne Convention, copyright protection may be granted to expressions, but not to ideas.

On the basis of such considerations, the CJEU clarified that for there to be a “work”, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity.

According to the CJEU, identifying the subject matter of protection clearly and precisely is essential not only for the authorities that must ensure the copyright protection, but also for economic operators, who must be able discern the scope of the rights that third parties, especially competitors, enjoy.

However, the taste of a food product is identified essentially on the basis of taste sensations and experiences, which, unlike those determined by other types of work of art that possess a precise and objective form of expression, are subjective and variable since they depend, inter alia, on factors peculiar to the person tasting the product concerned.

Furthermore, the current state of scientific development does not allow a precise and objective identification of the taste of a food product by technical means, such as to enable it to be distinguished from the taste of other products of the same kind.

The CJEU hence concluded that the taste of a food product cannot be classified as a “work” within the meaning of Directive 2001/29. In consideration of the need for a uniform interpretation of the concept of a “work” throughout the EU, the CJEU also clarified that the directive prevents national legislation from being interpreted in such a way that it grants copyright protection to the taste of a food product.