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Taste Of A Food Product Isn’t Eligible For Copyright Protection, EU Court Says

The taste of a food product is not eligible for copyright protection, the Court of Justice of the European Union (EU) ruled this week in a case involving a Dutch cheese spread.

“Heksenkaas” is a spreadable dip with cream cheese and fresh herbs, which was created in 2007 by a Dutch retailer of vegetables and fresh produce, the Court of Justice explained.

The intellectual property rights in that product were transferred by the retailer to the current rightholder, Levola, a company governed by Dutch law.

A patent for the method of manufacturing Heksenkaas was granted in July 2012, the Court of Justice pointed out.

Since January 2014, Smilde, a company also governed by Dutch law, has been manufacturing a product called “Witte Wievenkaas,” for a supermarket chain in the Netherlands, the Court of Justice noted.

Levola took the view that the production and sale of Witte Wievenkaas infringed its copyright in the “taste” of Heksenkaas and asked the Dutch courts to order Smilde to cease, inter alia, production and sale of that product. Levola claims that the taste of Heksenkaas is a work protected by copyright and that the taste of Witte Wievenkaas is a reproduction of that work.

Conversely, Smilde submits that the protection of tastes is not consistent with the copyright system, as the latter is intended purely for visual and auditory creations, the Court of Justice stated.

Moreover, 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.

Smilde further submitted that the exclusive rights of the author of a work of intellectual property and the restrictions to which those rights are subject are, in practical terms, inapplicable in the case of tastes.

Hearing the case on appeal, the Regional Court of Appeal, Arnhem-Leeuwarden, Netherlands, asked the Court of Justice whether the taste of a food product can be protected under the Copyright Directive.

In this week’s judgment, the Court of Justice made clear that, in order to be protected by copyright under the Copyright Directive, the taste of a food product must be capable of being classified as a “work” within the meaning of the Directive.

Classification as a “Work” requires, first of all, that the subject matter concerned is an original intellectual creation.

Second, there must be an “expression” of that original intellectual creation.
In accordance with the Agreement on Trade-Related Aspects of Intellectual Property Rights, which was adopted in the Framework of the World Trade Organization and to which the EU has acceeded, and with the World Intellectual Property Organization (WIPO) Copyright Treaty, to which the EU is a party, copyright protection may be granted to expressions, but not to ideas, procedures, methods of operation or mathematical concepts as such.

Accordingly, for there to be a “work” as referred to in the Copyright Directive, the subject matter protected by copyright must be expressed in a manner which makes it identifable with sufficient precision and objectivity, the Court of Justice explained.

In that regard, the Court of Justice found that the taste of a food product cannot

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