On 13 November 2018, the Court of Justice of the EU (“CJEU”) rendered a significant new judgment regarding the question of whether the taste of a food product is a “work” that is eligible for copyright protection.

The case that led to the CJEU’s preliminary ruling was initiated by the Dutch company Levola against another Dutch company, Smilde. Levola argued that the production and sale of Smilde’s “Witte Wievenkaas” cream cheese dip infringed its copyright in the taste of its own “Heksenkaas” cream cheese dip. Hearing the case on appeal, the Court of Appeal of Arhnhem-Leeuwarden (Netherlands) decided to refer preliminary questions to the CJEU to know whether (and, if so, how) the taste of a food product could actually be protected by copyright.

The CJEU clarified that the taste of a food product can be protected by copyright only if such a taste can be classified as a “work” (and the concept of “a work” must be an autonomous and uniform concept throughout the EU). In order to be classified as a “work”, the subject matter must be:

  1. original in the sense that it is the author’s own intellectual creation; and
  2. an expression of the author’s own intellectual creation.

As regards the second condition, the CJEU reiterated the principle that copyright protection may be granted to expressions, but not to ideas, procedures, methods of operation or mathematical concepts.

Accordingly, a “work” must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form. That is because, first, both authorities and economic operators must be able to identify, clearly and precisely, the protected subject matter. Second, to ensure that there is no subjectivity in identifying the protected subject matter, the subject matter must be capable of being expressed precisely and objectively.

In this sense, the CJEU considered that the taste of a food product cannot be defined with enough precision and objectivity, in contrast to a musical or literary work, for example. Whereas the taste of a food product is identified according to taste sensations and experiences which are subjective and variable (such as age, food preferences and consumption habits), a musical or literary work is a precise and objective form of expression easier to identify.

Further, the CJEU concluded that there is currently no scientific method providing a precise and objective identification of the taste of a food product that distinguishes it from the taste of other similar products. Hence, the taste of a food product cannot be classified as a “work” and is not eligible for copyright protection.

Comment: The CJEU’s conclusion that the taste of a food product cannot be protected by copyright is far from surprising and was probably the most logical outcome (even though the reasoning behind it might initially seem somewhat circular).

Interestingly, to explain the expression requirement in copyright law as established in this judgment, the CJEU applied criteria very similar to the “Sieckmann” criteria in trade mark law (with regard to the representation requirement) and other trade mark law notions (“distinguish from”).

In any case, for Levola this decision means that it cannot use copyright law to prevent Smilde from selling its “Witte Wievenkaas”: the taste of its own “Heksenkaas” is not protected by copyright.

CJEU, 13 November 2018, C-310/17, www.curia.eu