The taste of cheese cannot be protected by copyright! What about fragrances of perfume?

The Court of justice of the European Union (“CJEU”) ruled on 13 November 2018 in the case C-310/17 that the taste of cheese is not a “work” in the meaning of the Directive 2001/29/EC on copyrights (“Directive”) and can therefore not be protected by copyright.

Although the CJEU did not rule on the smell of the cheese concerned, this decision will undoubtedly have an impact on the question of protection of fragrances by copyright and may lead to a more harmonised case law throughout Europe. Read more...

1. Background 

The “Heksenkaas” created in 2007 by Levola Hengelo BV (“Levola”), a company under Dutch law, is a spreadable dip with cream cheese.

Smilde Foods BV (“Smilde”), another company under Dutch law, has been manufacturing a product called “Witte Wievenkaas” since January 2014 for the Aldi supermarkets in the Netherlands.

Levola considered that the production and sale of ‘Witte Wievenkaas’ infringed its copyright in the taste of Heksenkaas. Hence, Lovela decided to bring legal action against Smilde due to this infringement.

Levola’s complaint was initially dismissed by the Dutch Gelderland District Court, on the grounds that the taste of Heksenkaas lacked originality and personal character.

Levola appealed this decision and the Dutch Appeals Court referred several questions to the CJEU for a preliminary ruling on the interpretation of the concept of a “work” under the Directive and whether it includes the taste of a food product.

2. Answer of the Court

In its judgment of 13 November 2018, the CJEU indicated 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”.

-  What does “work” mean under the Directive?

A “work” must meet the following requirements:

it must be original, in the sense that it is the author’s own intellectual creation;
it must be expressed in a manner which makes it identifiable with sufficient precision and objectivity.

Copyright protection may be granted to expressions, but not to ideas, procedures, and methods of operation or mathematical concepts as such, as they need to be expressed in some sort of medium.

-  Can a cheese taste be considered as a “work”?

The taste of a cheese does not meet the form-of-expression requirement since it lacks precision and objectivity because it depends on the consumer’s sense of taste, which is subjective and variable. Indeed, it will depend on factors particular to the consumer, such as age, food preferences and consumption habits.

In addition, the current state of the art does not enable the taste of a product such as cheese to be identified precisely and to be distinguished from the taste of other products.

3. Impact of the decision limited to the food industry?

The taste of a food product can therefore not be considered as a “work” and consequently it cannot be protected by copyright under the Directive.

This decision will undoubtedly have an impact on the question of the protection of fragrances by copyright and may lead to a more harmonised case law in the matter.

In fact, the Supreme Courts in France and in the Netherlands currently have opposed views on the matter.

But the CJEU has not definitely closed the matter as it admits that, if the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, that expression is not necessarily in a permanent form. In addition, it recognises that its conclusion depends of the current state of scientific development and, as a consequence, one cannot exclude that the latter will achieve by technical means a precise and objective identification of the taste or smell of the product in question which enables it to be distinguished from the taste or smell of other products of the same kind.

Thus, to be followed....