According to Attorney General (AG) Wathelet, who issued his opinion to the Court of Justice of the European Union (CJEU) in the case of Levola Hengelo v. Smilde Foods (C-130/17), the taste of food is not protectable as a copyright work.
Levola, the maker of Dutch cream cheese Heksenkaas, claimed that Smilde had infringed their copyright by producing a cream cheese under the name Witte Wievenkaas that had the same taste. Levola’s complaint was initially dismissed by a Dutch tribunal on the grounds that the taste of Heksenkaas lacked originality and personal character.
Levola appealed and the Dutch Appeals Court requested preliminary rulings of the CJEU which effectively came down to whether the taste of a food product could be granted copyright protection under EU law.
Advocate General’s Opinion
AG Wathelet looked at what constitutes a “work” under EU copyright law. After noting that the term was not defined in the InfoSoc Directive 2001/29, AG Wathelet turned to the Berne Convention and considered the scope of protected literary and artistic work, relying on the non-exhaustive list of examples included.
AG Wathelet took the view that the list only refers to works that are perceived either visually or audibly but not through any other senses. He determined that original expressions must be sufficiently precise and objectively identifiable.
Applying those principles, AG Wathelet concluded that taste has subjective character and cannot be perceived visually or audibly therefore it cannot be considered a “work” under EU copyright law.
AG Wathelet’s opinion highlighted the difficulty of protecting the taste and smell of a product. Perhaps future technology will enable such works to be identifiable with sufficient precision and objectivity to warrant copyright protection. For now, we wait to find out whether the CJEU will follow AG Wathelet’s opinion. Should it do so, some would view it as a missed opportunity to recognise the skill and expertise needed to develop product tastes and smells.