At the end of last month, Attorney General (AG) Wathelet issued his opinion to the Court of Justice of the European Union (CJEU), advising that no EU copyright protection should vest in the taste of cheese, or any food product. Can you brie-lieve it?
Case details
The AG's opinion was sought by the Dutch, Arnhem-Leeuwarden Appeals Court in the case of Levola Hengelo BV v Smilde Foods BV (Case C-310/17). Here, Levola took action against Smilde, arguing that Smilde's 'Witte Wievenkaas' infringed their copyright in the flavour of their 'Heks'nkaas' cheese as it had the same taste and was therefore a reproduction of their 'work'– both being cream cheese products. Levola based its claim on the case of Lancôme Parfums Et Beauté et cie S.N.C. v. Kecofa B.V. where Dutch courts held that perfume, if original, could be protected by copyright where perceptible (through smell in that instance).
The Dutch Appeal Court turned to the CJEU for clarification as to whether EU law would prevent the taste of a food product being protected by copyright.
AG's opinion
In giving his opinion AG Wathelet had to determine what fell within the realms of a copyright 'work' under the InfoSoc Directive (Directive 2001/29/EC) and the Berne Convention.
AG Wathelet considered the scope of protected literary and artistic works, as provided for in the Berne Convention, and concluded that a 'work' has to be something which is seen or heard but not perceived through any other senses. Additionally, AG Wathelet held that "original expressions should be identifiable with sufficient precision and objectivity" – which taste cannot be as it is subjective. He therefore concluded that the legislation prevents the taste of a foodstuff being protected by copyright. His opinion also seems to prevent smells being protected, disagreeing with the earlier Dutch ruling.
Was the opinion a gouda?
Protective measures are available for protecting IP rights in foodstuffs, such as registering a patent for the manufacturing process or getting a trade mark for the brand and/or product name/logo (both of which Levola have for Heks'nkaas). It could be argued that it is a logical progression for taste to also be considered a protectable IP right of the author, particularly given the considerable skill and expertise that can go into developing a product that tastes good. However, if the CJEU follow the AG's decision this would mean the end of the line for sensory works of an author being protected by copyright.
Whilst courts tend not to divert from the AG's opinion it remains to be seen what the CJEU's response will be – things might get feta for Heks'nkaas.
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