It's a matter of taste: CJEU questioned about copyright protection of taste

Many a debate about whether or not something looks beautiful, sounds nice or tastes good has ended with the universal truism: well, tastes differ. While in practice such an agreement-to-disagree generally works well to avoid further conflict, in the legal world it is this kind of uncertainty that usually causes the conflict to begin with. When the available legal framework seems to leave room for opposing "flavours", it can be even necessary to obtain guidance from the Court of Justice of the European Union ("CJEU"). On 23 May 2017, the Court of Appeal of Arnhem-Leeuwarden, NL (Gerechtshof Arnhem-Leeuwarden, "CoA") sought a preliminary ruling by the CJEU on several questions in an effort to end an ongoing debate on whether or not a specific taste can be the subject of copyright protection. The case before the CJEU already has a number (C-310/17) but not much other information has been made available to the international public yet. This newsflash will therefore provide some backgrounds to the case and set out the questions referred to the CJEU together with a few general observations. For the interested reader, the CoA's judgement (in Dutch) can be found here.


The dispute revolves around two flavours of cheese spreadOne is the very popular product Heks'nkaas ("witches' cheese" in Dutch), a dip created by a local greengrocer in 2007 and sold by the Levola company. According to the CoA's judgment, the greengrocer processed a batch of cream cheese into a spread by adding a mayonnaise-based sauce, cut leek, parsley and garlic pulp.  Levola, which purchased the secret recipe in 2011, takes the position that the spread has such a distinctive taste that it is eligible for copyright protection. Much like a scent, according to Levola, for which the Dutch Supreme Court accepted copyright protection in the landmark Lancôme/Kecofa case (16 June 2006). (Fun fact: NautaDutilh acted for Lancôme in this matter). The word "taste" is described by Levola (in summary) as "the sensory perception upon the consumption of a foodstuff, consisting of a combination of basic flavours and the mouthfeel caused by, among other things, the viscosity and consistency of the product'.

Opposing Levola is Smilde Foods, which sells a cheese spread called Witte Wievenkaas ("white womens' cheese"). Although the dispute before the CoA relates to the products' similar tastes, in a previous trademark opposition case brought by Smilde the parties also argued about the similarity of the names: in Dutch, "witte wieven" also refers to a type of ghostly, witch-like creature. On 28 February 2017, the Court of Appeal of The Hague held that witches and "witte wieven" are indeed both "supernatural, magical creatures with negative connotations" which makes the signs conceptually similar. In view of this similarity combined with the identical nature of the goods, the Court of Appeal of The Hague refused Smilde's trademark application.

However, at the core of the parties' debate is not the name of Smilde's product, but of course the product itself, which tastes a lot like Levola's Heks'nkaas too. In contrast to Levola, Smilde takes the position that a taste in itself cannot be protected by copyright and that, for a number of reasons, the EU system of copyright law cannot and should not be applied to a taste.   

Both the Gelderland District Court (on 10 June 2015, in the previous instance) and the District Court of The Hague (on 3 May 2017, in a similar case against a different company) found it unnecessary to decide whether a taste can be copyrighted. They each concluded, more or less on the same grounds, that Levola had simply failed to put forward facts and arguments regarding which elements (or combination of elements) of the product's taste give rise to its own original character and bear the maker's personal mark (both required for copyright protection in the Netherlands).    

In contrast to the district courts, the CoA held that this core question must be addressed. In its judgment, the CoA first sets out the applicable international and national frameworks, including a useful list of the CJEU's decisions regarding the requirements that must be met by a work in order to be protected by copyright. According to Smilde, it is this case law that has made the Dutch Supreme Court's 2006 decision about scent obsolete.

For the CoA, this case law makes clear that in order for a work to gain copyright protection, it must in any event be shown that the maker has made creative choices; only then can one speak of an intellectual creation. Whether or not such creative choices have been made, and to what extent, also depends on the nature of the work. For example, if it concerns an article of daily use, the functional requirements will usually limit the maker's freedom to make creative choices. This affects the scope of a claimant's obligation to put forward facts and arguments in support of its claim (stelplicht).

The CoA also notes that, unlike the Dutch Supreme Court, the French Supreme Court has categorically rejected the protection of scents, most recently in a decision of 10 December 2013. This shows that the highest national courts in the EU differ on a question that is very similar to the one at hand.

Accordingly, the CoA concludes that there is reasonable doubt about whether a taste can be protected by copyright under EU copyright law and that the CJEU's guidance is therefore required.

Questions referred for preliminary ruling

The first question on which the CoA seeks the CJEU's guidance is whether EU law in general precludes granting copyright protection to a taste.More specifically, the CoA wants to know whether granting such protection is precluded by, (i) Art. 2 (1) of the Berne Convention which seems to relate only to visual and auditory creations, (ii) the instability of the food (due to influences like temperature, storage, durability) and the subjective character of the taste experience itself and (iii) the system of exclusive rights (such as the right of communication to the public, lending rights, rental rights, etc.) and the limitations on those rights (e.g. quotations) as laid down in copyright law which might not be entirely applicable to tastes.

If the CJEU decides that EU law does not preclude granting copyright protection to a taste, the CoA the CoA has a number of additional questions, namely:  

  1. What are the requirements for granting such protection?
  2. Is the protection limited to the taste as such or does it extend to the underlying recipe?
  3. What must be put forward by the claimant in proceedings alleging the infringement of a copyrighted taste? Is it sufficient to submit the food itself (so that judges can assess for themselves, by tasting and smelling, whether the product meets the threshold for protection) or must the claimant also provide a description of the creative choices in relation to the taste composition and/or the recipe on the basis of which the taste qualifies as the maker's an own intellectual creation?
  4. How should a court determine whether the taste of the allegedly infringing product is similar to such an extent as to give rise to copyright infringement; is it determinative (alone or in combination with other factors) that the overall impression of both tastes is the same?

Some observations

The subject of copyright protection of tastes has been stirring up emotions in European legal literature for some time now. Some say that such protection would be contrary to the idea/expression dichotomy, which is the notion that ideas and principles underlying any element of a work can never be protected. Others fear the effect such protection would have on, among other things, free competition; it would, they claim, lead to creative stagnation because when chefs invent new dishes and thus tastes they always build on already existing dishes. If to do so would mean risking liability for copyright infringement, they may become less willing to experiment and innovate.

Some people also question the added value of using copyright law to provide tastes with protection. They argue that tastes or taste effects can be protected just as well via patent law and that the products themselves often also have other, more recognisable features that can be protected far more easily than taste under the existing intellectual property rights (e.g. their packaging, shape, brand etc.). Protection may also be possible via the trade secret rules and/or the rules on unfair competition.

For the purpose of legal certainty it is important that market players at a minimum be able to predict, as exactly as possible, the legal consequences of their conduct. This would seem a difficult goal to achieve when it comes to taste, given the difficulties of ascertaining crucial elements such as a taste's origin, the date of its creation and of course its exact description  and scope (if not based on the recipe and/or list of ingredients).

Whichever "flavour" you prefer, it is certain that the parties will present all of these arguments and many others to the CJEU. We will be closely monitoring this case and will keep you informed of further developments.