The Dutch are known for making world famous cheese, among many other things! Recently, two Dutch cheese companies indulged in a legal battle over the Taste of cheese. The two companies were, Levola and Smilde. Levola sold Heksenkaas which means "witches' cheese," and is a cream cheese spread with fresh herbs that was created in 2007, whereas Smilde produced and sold the cheese spread called Witte Wievenkaas wherein 'witte' refers to white and 'wieven' refers to wives which is used as a referance to 'witch of ghosts'. Therefore the element 'HEKSEN' and 'WITTE WIEVEN' have a similar meaning, and a strong conceptual similarity.
It was alleged by Levola that the cheese spread produced by Smilde tasted very similar to their product and thus violated the copyrights of Levola. Levola stated that copyright in taste refers to the 'overall sensation' caused by the consumption of the product. Levola prayed to the District Court of Netherlands to pass an injunction against Smilde from selling its products in the market. However, the Dutch Court, in 2015 held that Levola's plea stands rejected since Levola had not indicated which specific elements, or combination of elements, of the taste of Heksenkaas gave it its unique, original character. Levola, however, appealed against that judgment before the Court of Justice of European Union (CJEU).
The referred court was subject to one primary query – Can taste be copyrighted?
Levola contended that the taste of a food product may be classified as a work of literature, science or art that is eligible for copyright protection by relying on the judgment passed by the CJEU which recognized copyrights for a scent of a perfume (Let's leave this story for another time). On the other hand, Smilde submitted that the protection of tastes is not consistent with the copyright system, as the latter is intended purely for visual and auditory creations. Further, the instability of a food product and the subjective nature of the taste experience preclude the taste of a food product qualifying for copyright protection as a work.
The Court of Justice elaborated that in order to be copyrightable a piece of 'work' must comply with the following: the subject matter concerned is an original creation and secondly, there must be an expression of such original creation. Further, as per the Copyright Directive of the EU Parliament, 'work' is referred to as the subject matter which must be expressed in a manner that makes it identifiable with sufficient precision and objectivity. The EU Court held that 'taste' of a food product lacks such precision and objectivity and thus cannot be considered as 'work' which shall indicate that such taste is not copyrightable.
Compiled by: Adv. Sachi Kapoor | Concept & Edited by: Dr. Mohan Dewan
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