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Dennis Voerman is the Dutch creator of a successful cheese-based spread named Heks’nkaas. In 2011, he assigned to a company called Levola the copyright relating to the recipe, its method of preparation and the taste features of his product.
A company called Smilde then launched Witte Wievenkaas, a similar competing spread, so Levola sued for copyright infringement on the grounds that Smilde was reproducing the original taste of Levola’s product, consisting of the combination of specific tastes and the unique feeling caused by its consistency.
On June 10, 2015, the Dutch court of first instance rejected these claims on the grounds that Levola had not specified which element or combination of elements of the product’s taste was original and imprinted with the author’s personality, adding that it was not up to the court to proceed with a tasting session.
This issue is somewhat reminiscent of the question of protection for a smell which, even though it has not been decided by the Court of Justice of the European Union (CJEU), has been highly debated.
"The CJEU will have to define what can constitute a work protectable through copyright and thus whether a creation that is perceived by taste can be considered as such."
Hearing the case on appeal, the Dutch appeals court first recalled that “all products in the literary, scientific and artistic domain irrespective of their mode or form of expression” can be copyrighted. The judges then referred to the CJEU’s Infopaq decision of July 16, 2009 to indicate that copyright is intended to apply only to “an author’s own intellectual creation”.
Turning then to national law, it mentioned a decision of the Dutch Supreme Court which ruled that the human limits for distinguishing odours, and the fact that perception differs from one individual to another, do not prevent an odour from being such a creation as long as it consists in a production that is perceptible to humans, with individual and original character that bears the imprint of its author’s personality.
In France, judges have refused to acknowledge copyright protection for a perfume because copyright protects creations in their perceptible form, only insofar as this is identifiable with sufficient precision to enable its communication, which is not the case for a smell.
The Dutch court ended in its decision of May 23, 2017 deciding that there are serious uncertainties in relation to knowing whether the taste of a food product can be protected through copyright, and asked for a decision from the CJEU.
It raised the following questions:
- Does EU law prohibit the taste of a food product from being protected by copyright?
- If not, what are the requirements for such protection?
The CJEU will have to define what can constitute a work protectable through copyright and thus whether a creation that is perceived by taste can be considered as such, before contemplating the conditions for its protection.
Moreover, a creation that can be perceived by taste or smell is characterised by its potential instability and the subjective character of its perception by the consumer, so the court will have to decide whether these elements prevent copyright protection.
Similarly, in defining the author’s exclusive rights, articles 2 and 5 of Directive 2001/29/EC refer to the concept of reproduction, with various exceptions. The court will also have to decide if this construction is compatible with the copyright protection of the taste of a food product.
It will be interesting to see if the CJEU takes up this issue and opens up the prospect of protection for creations that are perfumes or food products.
Readers will recall that the new EU trademark regulation deleted the requirement for graphical representation when filing trademarks and refers now to a representation that enables competent authorities and the public to determine precisely and clearly the object of the claimed protection. As a result, it is not excluded that odours could be filed as trademarks in the future.
Aurélia Marie is a partner at Cabinet Beau de Loménie. She can be contacted at: firstname.lastname@example.org
Cabinet Beau de Loménie, Aurélia Marie, France jurisdiction report, CJEU