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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Can military reports be subject to a copyright protection?

military-jet-fighter-569907_960_720The Advocate General of the European Court M. SZPUNAR gave his opinion on Case  C‑469/17 Funke Medien NRW GmbH versus Bundesrepublik Deutschland, which concerns the following:

The defendant, the Federal Republic of Germany, has a military status report drawn up every week on the deployments of the Bundeswehr (Federal Armed Forces, Germany) abroad and on the developments at the deployment locations. The reports are referred to as ‘Unterrichtung des Parlaments’ (Parliament briefings, ‘UdPs’) and are sent to selected members of the Bundestag (Federal Parliament, Germany), to sections of the Bundesministerium der Verteidigung (Federal Ministry of Defence, Germany) and other federal ministries, and to subordinate bodies of the Federal Ministry of Defence. UdPs are categorised as ‘classified documents — Restricted’, the lowest level of confidentiality. At the same time, the defendant publishes summaries of the UdPs known as ‘Unterrichtung der Öffentlichkeit’ (public briefings, ‘UdÖs’).

The applicant, Funke Medien NRW GmbH (‘Funke Medien’), a company incorporated under German law, operates the website of the daily newspaper Westdeutsche Allgemeine Zeitung. On 27 September 2012, it applied for access to all UdPs drawn up between 1 September 2001 and 26 September 2012. The application was refused on the ground that disclosure of the briefings could have adverse effects on security-sensitive interests of the federal armed forces. The defendant nevertheless obtained, by unknown means, a large proportion of the UdPs and published several of them as the ‘Afghanistan-Papiere’ (Afghanistan Papers).

The Federal Republic of Germany took the view that Funke Medien had infringed its copyright over those reports and thus brought an action against it seeking an injunction, which was upheld by the Landgericht (Regional Court, Germany). Funke Medien’s appeal was dismissed by the appellate court. By its further appeal on a point of law, Funke Medien maintains its form of order seeking dismissal of the injunction action.

In those circumstances, the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

‘(1)  Do the provisions of Union law on the exclusive right of authors to reproduce (Article 2(a) of Directive 2001/29) and publicly communicate their works, including the right to make works available to the public (Article 3(1) of Directive 2001/29), and the exceptions or limitations to these rights (Article 5(2) and (3) of Directive 2001/29) allow any latitude in terms of implementation in national law?

(2) In which way are the fundamental rights of the Charter … to be taken into account when ascertaining the scope of the exceptions or limitations provided for in Article 5(2) and (3) of Directive 2001/29 to the exclusive right of authors to reproduce (Article 2(a) of Directive 2001/29) and publicly communicate their works, including the right to make works available to the public (Article 3(1) of Directive 2001/29)?

(3) Can the fundamental rights of freedom of information (second sentence of Article 11(1) of the Charter) or freedom of the media (Article 11(2) of the Charter) justify exceptions or limitations to the exclusive rights of authors to reproduce (Article 2(a) of Directive 2001/29) and publicly communicate their works, including the right to make works available to the public (Article 3(1) of Directive 2001/29), beyond the exceptions or limitations provided for in Article 5(2) and (3) of Directive 2001/29?’

13. The request for a preliminary ruling was received at the Court on 4 August 2017. Written observations were lodged by Funke Medien, the German, French and UK Governments and the European Commission. The same parties were represented at the hearing on 7 July 2018.

The Advocate’s position:

Article 11 of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 52(1) thereof, must be interpreted as precluding a Member State from invoking copyright under Article 2(a) and Article 3(1) of 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 in order to prevent the communication to the public, in the context of a debate concerning matters of public interest, of confidential documents emanating from that Member State. That interpretation does not prevent the Member State from applying, in compliance with EU law, other provisions of its domestic law, including those relating to the protection of confidential information.

Shift the blame for copyright infringement to your parents – an EU Court decision

pirate-2129571_960_720The European Court has ruled in case C‑149/17,Bastei Lübbe GmbH & Co. KG v Michael Strotzer, which concerns the following:

Bastei Lübbe is the holder, as a phonogram producer, of the copyright and related rights in the audio version of a book.

Mr Strotzer is the owner of an internet connection through which, on 8 May 2010, that audio book was shared, for the purpose of downloading, with an unlimited number of users of a peer-to-peer internet exchange. An expert correctly attributed the IP address in question to Mr Strotzer.

By letter of 28 October 2010, Bastei Lübbe warned Mr Strotzer to cease and desist the infringement of copyright which had occurred. That warning notice was unsuccessful and Bastei Lübbe brought an action before the Amtsgericht München (Local Court, Munich, Germany) against Mr Strotzer as the owner of the IP address in question, seeking damages.

However, Mr Strotzer denies having himself infringed copyright and maintains that his connection was sufficiently secure. In addition, he asserts that his parents, who live in the same household, also had access to that connection but that to his knowledge they did not have the work in question on their computer, were not aware of the existence of the work and did not use the online exchange software. In addition, Mr Strotzer’s computer was switched off at the time when the infringement in question was committed.

The Amtsgericht München (Local Court, Munich) dismissed Bastei Lübbe’s action for damages on the ground that Mr Strotzer could not be held liable for the infringement of copyright in question, because he had stated that his parents could also have committed the infringement in question.

Bastei Lübbe appealed against the decision of the Amtsgericht München (Local Court, Munich) before the Landgericht München I (Regional Court, Munich I, Germany).

That court is inclined to hold Mr Strotzer liable in that it does not follow from his explanations that a third party used the internet connection at the time of the infringement. It considers that Mr Strotzer is therefore seriously likely to have committed the copyright infringement.

That court nevertheless considers itself to be compelled to apply Paragraph 97 of the Law on copyright and related rights, as amended by the Law of 1 October 2013, as interpreted by the Bundesgerichtshof (Federal Court of Justice, Germany), which in its view might preclude the defendant from being held liable.

In fact, according to the case-law of the Bundesgerichtshof (Federal Court of Justice), as interpreted by the referring court, it is for the applicant to allege and prove the infringement of copyright. The Bundesgerichtshof (Federal Court of Justice) considers, moreover, that the owner of an internet connection is presumed to have committed such an infringement provided that no other person was able to use the internet connection at the time of the infringement. However, if the internet connection was not sufficiently secure or was knowingly made available to other persons, then the owner of that connection is not presumed to have committed the infringement.

In that case, the case-law of the Bundesgerichtshof (Federal Court of Justice) nonetheless places on the owner of the internet connection a secondary burden to present the facts. The owner discharges that secondary burden to the requisite standard by explaining that other persons, whose identity he discloses, where appropriate, had independent access to his internet connection and are therefore capable of having committed the alleged infringement of copyright. Although a family member of the owner of the internet connection had access to that connection, the owner of that connection is not, however, required to provide further details relating to the time and the nature of the use of that connection, having regard to the protection of marriage and family guaranteed by Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and the corresponding provisions of the German Basic Law.

In those circumstances, the Landgericht München I (Regional Court, Munich I) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1. Should Article 8(1) and (2), in conjunction with Article 3(1), of Directive 2001/29/EC be interpreted as meaning that “effective and dissuasive sanctions” for infringements of the right to make works available to the public are still provided for even when the owner of an internet connection used for copyright infringements through file-sharing is excluded from liability to pay damages if the owner of that internet connection can name at least one family member who, besides him or her, might have had access to that internet connection, without providing further details, established through appropriate investigations, as to when and how the internet was used by that family member?

2. Should Article 3(2) of Directive 2004/48/EC be interpreted as meaning that “effective” measures for the enforcement of intellectual property rights are still provided for even when the owner of an internet connection used for copyright infringements through file-sharing is excluded from liability to pay damages if the owner of that internet connection can name at least one family member who, besides him or her, might have had access to that internet connection, without providing further details, established through appropriate investigations, as to when and how the internet was used by that family member?’

The Court ‘s decision:

Article 8(1) and (2) of 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, read in conjunction with Article 3(1) thereof, and Article 3(2) of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which, as interpreted by the relevant national courts, the owner of an internet connection used for copyright infringements through file-sharing cannot be held liable to pay damages if he can name at least one family member who might have had access to that connection, without providing further details as to when and how the internet was used by that family member.

Nintendo won a copyright lawsuit against a go-kart operator in Tokio

wario-1912622_960_720Nintendo successfully won a copyright lawsuit in Tokio against the local company MariCar Inc., an operator of a go-kart service which provides its customers with costumes that look alike Nintendo’s famous game characters.

In contrast with many countries around the world, it is possible to drive a kart on public roads in Japan.

According to Nintendo, such use of its characters constitute a copyright infringement because the company has never given a permission.

The Court agreed with this claim and imposed a compensation.

This case is a good example of many similar practices, not only in Japan, where companies use famous characters for different entertainments or advertisements without receiving the necessary copyrights from the relevant owners.

Source: The Japan Times

Copyright problems for Vodafone in the US

protected-267353_960_720.jpgVodafone failed to register its well-known trademark logo as a copyrighted work in the US Copyright Office.

The company was ascertaining that its logo is subject to copyright protection because it represents either a quotation mark or a balloon droplet in combination with geometrical shapes and colours.

The Office, however, disagreed, stating that widespread symbols and geometrical shapes cannot be registered as a copyrighted work due to a lack of originality.

According to the  Section 313.4(J) of the Compendium:

Familiar symbols and designs are not copyrightable and cannot be registered with the U.S. Copyright Office, either in two-dimensional or three-dimensional form. 37 C.F.R. § 202.1(a). Likewise, the Office cannot register a work consisting of a simple combination of a few familiar symbols or designs with minor linear or spatial variations, either in two-dimensional or three-dimensional form. Examples of familiar symbols and designs include, without limitation:
• Punctuation.
• Symbols typically found on a keyboard, such as asterisks, ampersands, and
the like.

While familiar symbols and designs cannot be registered by themselves, a work of authorship that incorporates one or more of these elements into a larger design may be registered if the work as a whole contains a sufficient amount of creative expression.

However, the mere fact that the symbol is combined with colours is not enough to create the necessary distinctiveness.

Source: Nedim Malovic, IPKat.

ISPs have a right to be compensated in some cases when providing information for copyright infringers

law-1991004_960_720The Supreme Court of Canada ruled in the case Rogers Communications v Voltage Pictures, where the point at issue is whether the internet service providers (ISPs) have to be compensated for their costs when they give information for potential infringers.

In the case at hand, movies owned by the US company Voltage were been illegally used by Rogers’s individual clients.

The Canadian internet provider agreed to disclose the required information for these persons but only against financial compensation. The US company disagreed.

According to the the Supreme Court’s decision in such cases, the ISP has right to receive a compensation for its reasonable costs but only in a case when the information is not required by the law.

For example, connecting the IP address of a customer to his real identity and submitting this information with the copyright holder is not covered by the law requirements.

Source: WIPR.

UEFA failed to register its well-known logo as a copyrighted work in the US

pexels-photo-1093645The European Football Association UEFA failed in its attempt to register the following well-known logo as a copyrighted work in US Copyright Office:

Starball

Although this registration is not mandatory it is helpful in particular of copyright infringements and lawsuits.

The reason for this refusal was a lack of originality which is one of the main requirements for such registration. Despite the low level of originality which is necessary to protect a copyright work in the case at hand the Office considered that this is not accomplished because the mere combination of stars in a circle is insufficient in that regard.

UEFA tried its best to claim that this logo was original at least because it creates a three-dimensional illusion in the consumer mind, but all to no avail. The Office dismissed this leaning on Section 310 (3) of US Copyright Office Practice, according to which the Office would only need to consider the objective appearance of the work and not the “symbolic meaning or impression” that a work may evoke.

Source: IP KAT.