On 13 November 2018 the European Court of Justice (ECJ) rendered its decision in the copyright dispute between Dutch parties Levola and Smilde, finding that the taste of a foodstuff is not eligible for copyright protection (for further details please see "Heks'nkaas: an appetising copyright matter" and "Heks'nkaas: advocate general's opinion on copyrighting tastes unpalatable for Levola").(1)

Facts

Levola, which manufactures a cream cheese spread, noticed that other market players – including Smilde – had brought a spreadable dip with a very similar taste to the market, which had negatively affected its market share.

Levola sought its salvation in copyright protection. It argued that the taste of its cream cheese spread was an intellectual creation protected by copyright and that Smilde's similar tasting product constituted an unauthorised reproduction within the meaning of Article 13 of the Copyright Act. While The Hague District Court had – in another litigation against a different company offering a similar cream cheese spread – allowed a seizure of the allegedly infringing products, in the litigation against Smilde, Levola continuously encountered the same objection: the courts were hesitant to rule that the taste of a foodstuff can qualify as a copyrightable creation. In particular, the courts had difficulty delineating the taste (and thus, the object of protection) and establishing that the competing spreadable dips fell within the scope of copyright protection. This was not that surprising, as even the experts approached by Levola could not clearly define and demark the characteristics of the creation for which protection was sought.

Decision

The Arnhem-Leeuwarden Court of Appeal referred a number of prejudicial questions to the ECJ – in particular, whether a taste can be eligible for copyright protection. Levola took the position that tastes are not excluded from copyright protection anywhere in the legislation. Further, even though copyright legislation does not provide explicit protection for tastes, the list of copyrightable works set out in the Copyright Act and the Berne Convention is clearly non exhaustive. In addition, Levola stated that a taste can be an expression of an intellectual creation and that there is no reason to discriminate (from a copyright perspective) certain senses from others. Further, disallowing copyright protection for the taste of foodstuffs would be contrary to Dutch Supreme Court case law from 2006 in which scents had been found to be eligible for copyright protection.

Nonetheless, the ECJ ruled that tastes are not eligible for copyright protection. In order to be eligible for copyright protection, two conditions must be satisfied:

  • the subject matter must be original, in the sense that it is the author's own intellectual creation; and
  • only creations that form an expression of the author's own intellectual creation are eligible for protection.

In this case, the second condition was not satisfied. A main rule in copyright is that only concrete expressions and not ideas, procedures, recipes and methods of operation can be protected. This implies that the subject matter can be pinned down with precision and objectivity, even though that expression is not necessarily in a permanent form. That is crucial for legal certainty. Other market players (in particular, competitors), as well as judges, must be able to identify, clearly and precisely, what the object of protection is. In the case of a taste, that is impossible (in contrast to, for example, a pictorial, cinematographic or musical work) because the perception of a taste varies from person to person. The taste of a food product is identified essentially on the basis of taste sensations and experiences, which are subjective and variable since they depend on factors particular to the person tasting the product, such as age, food preferences and consumption habits, as well as on the environment or context in which the product is consumed.

The ECJ – as well as the advocate general in their prior opinion – acknowledged that future scientific and technological developments may make it possible to identify taste in a clear and objective manner. However, until that time, Levola will have to arm itself against imitation in the market in another manner, which is far from simple. Bearing in mind this reasoning, this judgment also seems to imply that copyright protection for scents is no longer possible.

This does not necessarily mean that the taste of foodstuffs will no longer be part of the legal marketplace in the Netherlands. In particular, in the field of comparative advertising, it is not uncommon for companies which sell foodstuffs to compare the taste of their product with others known to the public in their ads and to claim that their product tastes just as good or even better than the known product. On the basis of insights acquired by market surveys, consumer behaviour with regard to the taste experience can be established. Even though these consumer experiences are also subjective by nature, the taste comparisons are an accepted means of advertisement (as long as the survey meets the legal requirements for comparative advertising). In this regard, parties using the results of market research should make clear to the public which parameters were used in the research and that the results are verifiable.

For further information on this topic please contact Roderick Chalmers Hoynck van Papendrecht? at AKD by telephone (+31 88 253 5000) or email (rchalmers@akd.nl). The AKD website can be accessed at www.akd.nl.

Endnotes

(1) The court's judgment is available here.

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