In its Opinion (FR/NL) dated 25 July 2018, the Advocate-General advised the CJEU to not allow the flavour of a food product, i.e. the taste of a spreadable cheese in the case at hand, to be protected by copyright.
Levola Hengelo BV (“Levola”) filed an action against Smilde Foods BV (“Smilde”) for copyright infringement. According to Levola, Smilde breached its copyright on the “Heksenkaas”, a spreadable cheese, by producing another spreadable cheese, the “Witte Wievenkaas”, which would allegedly have the same taste.
The main question in this case is whether the taste of a foodstuff can be protected by copyright, or in other words, does EU law preclude that the taste of a foodstuff, as an author’s own intellectual creation, be protected by copyright?
In the opinion of the Advocate-General of the CJEU, the taste of a foodstuff cannot benefit from copyright protection, indeed:
- it is not enough for an object to be original in order to benefit from copyright protection. The object in question should also be a “work” (oeuvre/werk);
- the taste of a foodstuff cannot be reconciled with any of the “works” protected by the Berne Convention for the Protection of Literary and Artistic Works, and there is no provision of international law that protects the taste of a foodstuff by copyright.
- Furthermore, the Advocate-General uses the ‘idea/expression dichotomy’, i.e., whereas the way through which a recipe is expressed (expression) can be protected under copyright law if it is original, the copyright does not protect the recipe itself (idea). This is important because the original expressions should be recognisable with enough accuracy and objectivity. A taste could thus in theory be protected if it was possible to graphically depict it.
- However, in light of the current state of the art, the precise and objective identification of a taste is impossible, in particular given the subjective character of the taste experience, and its transient, volatile and unstable nature.
Taking into account the above, the Advocate-General of the CJEU considers that the taste of a foodstuff cannot benefit from the protection of copyright.
We have yet to see whether the Court will follow the reasoning of the Advocate-General.