The taste of food is not subject to copyright protection according to the EU Court

pexels-photo-1435184The European Court issued a decision on the case C‑310/17 Levola Hengelo BV vSmilde Foods BV which in brief concerns the question whether the taste of foods can be protected by copyrights.

The background is as follow:

‘Heksenkaas’ or ‘Heks’nkaas’(‘Heksenkaas’) is a spreadable dip containing cream cheese and fresh herbs, which was created by a Dutch retailer of vegetables and fresh produce in 2007. By an agreement concluded in 2011 and in return for remuneration linked to the turnover to be achieved by sales of Heksenkaas, its creator transferred his intellectual property rights over that product to Levola.

A patent for the method of manufacturing Heksenkaas was granted on 10 July 2012.

Since January 2014 Smilde has been manufacturing a product called ‘Witte Wievenkaas’ for a supermarket chain in the Netherlands.

Levola took the view that the production and sale of ‘Witte Wievenkaas’ infringed its copyright in the ‘taste’ of Heksenkaas and brought proceedings against Smilde before the Rechtbank Gelderland (Gelderland District Court, Netherlands).

After stating that, from its point of view, copyright in a taste refers to the ‘overall impression on the sense of taste caused by the consumption of a food product, including the sensation in the mouth perceived through the sense of touch’, Levola asked the Rechtbank Gelderland (Gelderland District Court) to rule (i) that the taste of Heksenkaas is its manufacturer’s own intellectual creation and is therefore eligible for copyright protection as a work, within the meaning of Article 1 of the Copyright Law, and (ii) that the taste of the product manufactured by Smilde is a reproduction of that work. It also asked that court to issue a cease and desist order against Smilde in relation to all infringements of its copyright and, in particular, in relation to the production, purchase, sale, supply or other trade in the product known as ‘Witte Wievenkaas’.

By judgment of 10 June 2015, the Rechtbank Gelderland (Gelderland District Court) 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, in any event, to be rejected since it had not indicated which elements, or combination of elements, of the taste of Heksenkaas gave it its unique, original character and personal stamp.

Levola appealed against that judgment before the referring court.

The latter considers that the key issue in the case before it is whether the taste of a food product may be eligible for copyright protection. It adds that the parties to the main proceedings have adopted diametrically opposed positions on this issue.

According to Levola, the taste of a food product may be classified as a work of literature, science or art that is eligible for copyright protection. Levola relies by analogy, inter alia, on the judgment of 16 June 2006 of the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), Lancôme (NL:HR:2006:AU8940), in which that court accepted in principle the possibility of recognising copyright in the scent of a perfume.

Conversely, Smilde submits that the protection of tastes is not consistent with the copyright system, as the latter is intended purely for visual and auditory creations. Moreover, the instability of a food product and the subjective nature of the taste experience preclude the taste of a food product qualifying for copyright protection as a work. Smilde further submits that the exclusive rights of the author of a work of intellectual property and the restrictions to which those rights are subject are, in practical terms, inapplicable in the case of tastes.

The referring court notes that the Cour de cassation (Court of Cassation, France) has categorically rejected the possibility of granting copyright protection to a scent, in particular in its judgment of 10 December 2013 (FR:CCASS:2013:CO01205). There is therefore divergence in the case-law of the national supreme courts of the European Union when it comes to the question –– which is similar to that raised in the case in the main proceedings –– as to whether a scent may be protected by copyright.

In those circumstances, the Gerechtshof Arnhem-Leeuwarden (Regional Court of Appeal, Arnhem-Leeuwarden, Netherlands) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)  (a) Does EU law preclude the taste of a food product — as the author’s own intellectual creation — being granted copyright protection? In particular:

(b) Is copyright protection precluded by the fact that the expression “literary and artistic works” in Article 2(1) of the Berne Convention, which is binding on all the Member States of the European Union, includes “every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression”, but that the examples cited in that provision relate only to creations which can be perceived by sight and/or by hearing?

(c) Does the (possible) instability of a food product and/or the subjective nature of the taste experience preclude the taste of a food product being eligible for copyright protection?

(d) Does the system of exclusive rights and limitations, as governed by Articles 2 to 5 of Directive [2001/29], preclude the copyright protection of the taste of a food product?

(2) If the answer to question 1(a) is in the negative:

(a) What are the requirements for the copyright protection of the taste of a food product?

(b) Is the copyright protection of a taste based solely on the taste as such or (also) on the recipe of the food product?

(c) What evidence should a party who, in infringement proceedings, claims to have created a copyright-protected taste of a food product, put forward? Is it sufficient for that party to present the food product involved in the proceedings to the court so that the court, by tasting and smelling, can form its own opinion as to whether the taste of the food product meets the requirements for copyright protection? Or should the applicant (also) provide a description of the creative choices involved in the taste composition and/or the recipe on the basis of which the taste can be considered to be the author’s own intellectual creation?

(d) How should the court in infringement proceedings determine whether the taste of the defendant’s food product corresponds to such an extent with the taste of the applicant’s food product that it constitutes an infringement of copyright? Is a determining factor here that the overall impressions of the two tastes are the same?’

The Court’s decision:

Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as precluding (i) the taste of a food product from being protected by copyright under that directive and (ii) national legislation from being interpreted in such a way that it grants copyright protection to such a taste.

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