The Arnhem-Leeuwarden Appellate Court recently referred questions regarding which kinds of object can be classified as copyrightable works to the European Court of Justice (ECJ).(1)

Facts

The case that led to the Arnhem-Leeuwarden Appellate Court's referral addressed the question of whether a certain taste can be protected under copyright law. The particular taste for which protection was sought – which could not be more Dutch – was Levola's popular cheese product Heks'nkaas.

In order to exploit the success of the Heksn'kaas product fully, Levola has initiated legal proceedings before the Dutch courts against multiple competitors in recent years. In all of these cases, Levola has claimed that it held copyrights for the product's taste.

The Dutch lower courts were not unanimous in their judgments on this matter. The Hague District Court held that the claim for copyright infringement was sufficiently substantiated and granted a request for the ex parte seizure of goods,(2) while the Gelderland District Court denied the copyright claim in proceedings on the merits.(3) The Arnhem-Leeuwarden Appellate Court judgment is the result of the appeal against this decision. Finally, The Hague District Court also denied Levola's copyright claim in proceedings on the merits.(4)

Relevance of case law regarding protection of scents

Although claims regarding copyright protection for tastes are uncommon, there is reason to argue that such protection should be possible. Levola's main argument seemed to be the Supreme Court's 2006 ruling in Lancôme v Kecofa that a perfume's scent was eligible for copyright protection.(5) This ruling was heavily criticised in the Netherlands and abroad. The fact that smells are not strictly covered by the copyright system, and that the legislature clearly did not think of perfumes when adopting the Copyright Act, was insufficient for the Supreme Court to refuse to grant copyright protection. The Supreme Court simply focused on the open-ended requirements for protection – namely, that, as with any other perceptible expression, if a smell is original, it could in principle be copyrightable. Levola believed that if fragrances could be protected by copyright, the same should apply to tastes.

There are some reasons not to accept the Lancôme v Kecofa case as established case law. The judgment fails to show that the defendant (Kecofa):

  • contested the similarity between the scents that were the subject of the litigation; and
  • failed to require evidence from Lancôme that its perfume met the protection requirements for a scent under copyright law.

It can therefore not be excluded that Kecofa's weak defence caused the Supreme Court to accept Lancôme's (insufficiently challenged) claims.

This should be borne in mind, as these arguments seemed to be important for the lower courts that have dealt with the Heks'nkaas cases so far. The Hague District Court and the Gelderland District Court both denied Levola's claims in substantive proceedings. The most important argument for The Hague District Court was that Levola had failed to show exactly what constituted the object for which protection was sought. The courts required Levola to define the protected subject matter. Such definition of the protected subject matter is crucial for two reasons that both serve legal certainty. First, it should be established that a claimant's creation meets the standard for protection as set out in the ECJ's case law.(6) Second, defining the work was necessary for establishing that the taste of the alleged infringing cream cheese fell within the scope of protection of the Heks'nkaas taste. Hence, the infringement question could be answered only after a sufficiently clear definition of the work, which seems to be a serious problem for tastes and scents. The experience of tasting food is personal. Further, a person's preferences can change over time and the tasting experience can also differ following a change in certain circumstances (ie, temperature). In addition, each person's ability to taste is different; when two persons taste the same meal, they are likely to have a different experience.

The Hague District Court also found that Levola had insufficiently defined its work. Nonetheless, the court was willing to taste the Heks'nkaas product in order to find out whether the court itself could define the product while tasting it. Surprisingly, the court mentioned in its judgment that it could analyse the object by tasting it, but that the taste was not creative enough, as it did not depart sufficiently from the tastes of other cheese spreads that were available in the market at the time of Heks'nkaas's creation. Arguably, the fact that the judges deemed themselves capable of such a complicated analysis is remarkable. Therefore, this judgement differs from the line chosen by the Arnhem-Leeuwarden Appellate Court.

Questions for ECJ

The Arnhem-Leeuwarden Appellate Court referred the case to the ECJ. In essence, it has sought answers to whether:

  • a product's taste can qualify for copyright protection; or
  • the potential instability of taste interferes with such protection.

If the principle first question is answered in the affirmative, the appellate court has asked the following questions:

  • Which requirements should be satisfied in order for the taste of a food product to be eligible for copyright protection?
  • Would the protection apply to the taste as such or rather the product's recipe (or both)?

The appellate court has also sought guidance as to how a court should assess a product's taste in practice and which elements an applicant should present when seeking protection through litigation.

Comment

It will be interesting to see how the ECJ answers these questions. While practice shows that the ECJ does not like excluding entire categories of works from copyright protection, it has been done before. In Premier League v Karen Murphy,(7) the ECJ held that sporting events cannot be regarded as intellectual creations classifiable as 'works' within the meaning of the EU Copyright Directive (2001/29/EC), as they are subject to the relevant game's rules, which leaves no room for creative freedom for copyright purposes. Whether the ECJ finds reason to repeat this phrase in the underlying case for the taste of foodstuffs is difficult to predict. Hopefully, the ECJ will not merely repeat the wording from Infopaq and Painer and leave it up to the national courts to assess whether the works presented in these cases meet the originality requirement, as that would provide no further clarity. Since the limitations for copyright protection for tastes would almost equally apply to the protection of scents, this referral will also answer the question of whether the Supreme Court was correct in accepting that Lancôme was entitled to enforce its copyrights for its fragrances in 2006.

For further information on this topic please contact Roderick Chalmers Hoynck van Papendrecht? at AKD by telephone (+31 88 253 50 00) or email (rchalmers@akd.nl). The AKD website can be accessed at www.akd.nl.

Endnotes

(1) Arnhem-Leeuwarden Appellate Court, May 23 2017 judgment (Levola v Smilde).

(2) The Hague District Court, January 13 2015 judgment (Levola v European Food Company).

(3) Gelderland District Court, June 10 2015 judgment, ECLI:NL:RBGEL:2015:4674 (Levola v Smilde).

(4) The Hague District Court, May 3 2017 judgment, ECLI:NL:RBDHA:2017:4384 (Levola v European Food Company).

(5) Supreme Court, June 16 2006 judgment, ECLI:NL:HR:2006:AU8940.

(6) ECJ, July 16 2009 judgment, ECLI:EU:C:2009:465 (Infopaq I); ECJ, December 1 2011 judgment, ECLI:EU:C:2011:798 (Painer).

(7) ECJ, October 4 2011 judgment, ECLI:EU:C:2011:631.

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