This article was first published in the March/April 2019 issue of CITMA Review, the journal of the Chartered Institute of Trade Mark Attorneys (CITMA). For more information on CITMA, please visit citma.org.uk
This case concerns the “Heks’nkaas” spreadable cream-cheese dip produced by spreadable cream-cheese dip produced by Dutch company Levola Hengelo BV. A patent for the method of manufacture was granted in 2007. However, when rival Smilde Foods began producing its “Witte Wievenkaas” cheese product, Levola relied on another area of IP law.
Levola brought a claim for copyright infringement before the Gelderland District Court in the Netherlands, alleging that the production and sale of Smilde’s product infringed its copyright in the “taste” of Heks’nkaas. It asked the Court to rule that the taste was its manufacturer’s own intellectual creation and therefore eligible for copyright protection as a “work”, and that the taste of Smilde’s product was a reproduction of that work.
Is taste protectable?
The Court held that it was not necessary to rule on the question of whether the taste of Levola’s product was protectable under copyright law, as Levola hadn’t indicated the elements that gave its product its unique character. Levola appealed to the Regional Board of Appeal, arguing that taste may be classified as a “work” of literature, science or art eligible for copyright protection. It referred to the 2006 judgment of the Supreme Court of the Netherlands in Lancôme, which accepted the possibility of copyright arising in accepted the possibility of copyright arising in a perfume scent.[i]The Regional Court noted that there was divergence between national supreme courts in the EU on the related issue of whether scent may be protected by copyright, and made a reference to the CJEU for a preliminary ruling.
Two questions were referred, although the CJEU found it necessary to answer only the first. This asked whether Directive 2001/29/EC (the Directive) precluded the taste of a food product from being protected by copyright and whether it precluded national legislation from being interpreted in such a way that it would grant such protection.
Mirroring Sieckmann, the CJEU said that subject matter to be protected under EU copyright law in the EU must be expressed in a way that makes it identifiable with sufficient precision and objectivity.[ii] Otherwise, it could not qualify as a “work” as referred to in the Directive. Authorities needed to be able to clearly and precisely identify subject matter, and this needed to be capable of being expressed in a precise and objective manner.
The CJEU held that such precision was not possible in relation to the taste of food products. Taste sensations and experiences are subjective and depend on various factors, and there are currently no technical means of precisely and objectively identifying and distinguishing these.
In view of the need for a uniform application of EU law, the CJEU said that national legislation could not be interpreted in a way that granted copyright protection to a food product’s taste.
Room for improvements
The decision raises an interesting question about whether improvements in current technology could open the door to such unusual “works” in the future. In the meantime, other forms of protection including trade secrets and patents should be considered when seeking to protect complex elements of a product, such as taste.