The Court of Justice (ECJ) this week ruled in Levola Hengelo BV v Smilde Foods BV that copyright protection does not extend to the taste of cheese. In its judgment the ECJ concluded that copyright protection can only subsist in works that are identifiable with sufficient precision and objectivity, and that the taste of a food product cannot meet this threshold.
Levola Hengelo, Dutch cheese producer and the owner of the "Heks'knaas" spreadable cheese product, claimed that one of its competitors (Smilde) had copied the taste of this product, an act Levola claimed constituted copyright infringement.
Levola Hengelo argued in particular that the taste of its "Heks'knaas" product was its own intellectual creation and was therefore eligible for copyright protection as a "work" within the meaning of Dutch copyright laws.
Smilde counterclaimed that the taste of cheese cannot be defined with sufficient precision so as to enable it to benefit from protection.
The question as to whether copyright could subsist in the taste of a spreadable cheese was referred by the Dutch Court to the ECJ.
In an opinion published on 25 July 2018, the Advocate General, in a ruling prior to the ECJ's decision, concluded that the taste of cheese could not be copyright protected, on the basis that works which can attract copyright protection must be recognisable with sufficient accuracy and objectivity.
The ECJ agreed with the decision of the Advocate General and affirmed that copyright protection can only subsist in works that are “identifiable with sufficient precision and objectivity”.
In its judgment, the Court considered whether a taste could be classified as a "work" within the meaning of the InfoSoc Directive (Directive 2001/29), thereby attracting the copyright protections afforded by the Directive. The Directive itself does not include a definition of the term "work", nor does it instruct Member States as to how to determine the meaning and scope of the term.
The ECJ held that two cumulative conditions must be satisfied for subject matter to be classified as a "work":
- The subject matter concerned must be original in the sense that it is the author’s own intellectual creation; AND
- only something which is the expression of the author’s own intellectual creation may be classified as a "work" within the meaning of Directive.
The Court commented that the authorities responsible for ensuring that copyright is protected must be able to identify, clearly and precisely, the subject matter so protected. Further, the Court emphasised the need to ensure that there is no element of subjectivity in the process of identifying the protected subject matter. The taste of a food product is inherently subjective, and one person's taste experience could be vastly different to another person's. As such, the Court concluded that the taste of a food product must be precluded from being protected by copyright.
This decision emphasises the requirement for legal certainty to vest in the work over which copyright protection is claimed. The ECJ did however acknowledge that expression need not necessarily be in permanent form (i.e. that expression can be subject to change and evolution) but rather that it should, at any particular point in time, be clearly identifiable.
In light of this decision it will be important for food manufacturers to consider the other aspects of food products over which intellectual property rights can be asserted.
It is possible that food product ingredients and manufacturing methods can be protected through trade secrets and patents. Equally, it is open to food producers to seek to protect the product brand and reputation through the registration of trade marks and/or geographical indications.