1 May 2015CopyrightMichiel Rijsdijk

A matter of taste

In the case a company called Levola requested that before making a judgment, the court would give permission for the seizure of items made by the European Food Company (EFC). Levola based its request on the claim that it was the copyright owner of the taste of a cheese spread product called Heks’nkaas.

The EFC produced and marketed a cheese spread product with a similar (if not identical) taste, called Magic Cheese. Levola stated that a taste can be protected under Dutch copyright law and that the Magic Cheese product infringed this copyright. As these were preliminary proceedings, the court found that Levola had sufficiently shown there was an infringement (and therefore that a taste can be copyright-protected), and awarded the request.

As limited as the ruling may be—this was only an ex-parte request and the EFC did not have the opportunity to reply to the petition—the court for the first time decided on copyright protection for taste. The court based its ruling primarily on the Lancôme v Kecofa ruling of the Dutch Supreme Court, which had been the first to decide on protecting scent (in perfume) with copyright.

An important question in the Lancôme v Kecofa case was whether a scent is a “work” defined in Dutch copyright law. In the Dutch Copyright Act, which is based on harmonised European law, a work is broadly defined in a non-exhaustive list. The primary problem with taste and scent as works is their perceptibility. Taste and scent are perceptible, but cannot be recorded. To protect something it has to be defined, which is difficult when recording it is impossible.

"If we allow taste to be copyright-protected, and this may apply to scents as well, a way of defining the work needs to be found."

Furthermore, a scent (and this is probably applicable to taste as well) is hard to perceive accurately. This not only has to do with it being hard to define a certain scent, but also because our senses simplify scents the more complex the mixtures get.

Despite all this the Supreme Court ruled that a scent can be a work, as it meets the requirements for a work—having its own “original character” and that it “bears the personal stamp of the maker”.

What is the creation?

The court also ruled that the substance in which the scent is incorporated cannot be considered part of the work. Only the scent is the actual work. This is similar to, for example, a painting. The picture is the creation, not the paint it was painted with. This also suggests that through the protection of a scent, any carrier substance is also protected, as a modified version of the work is also protected.

In Levola’s case, this would mean that its copyright for the Heks’nkaas taste would apply to every product in general, not just the cream cheese. This situation seems unreasonable. Awarding copyright to a taste may therefore be a bridge too far. But if the Heks’nkaas taste satisfies the requirements of a work, this suggests it can be protected.

The original character and personal stamp of the maker is hard to point out in a taste (and scent). The ingredients of the substance resulting in the taste will not do. Similar ingredients can lead to different results (as we experience in cooking) while, vice versa, different ingredients can lead to similar results.

If we allow taste to be copyright-protected, and this may apply to scents as well, a way of defining the work needs to be found. A professional tasting panel may be a start. It may also be worth considering analysing the exact chemical composition of a substance containing the work. This would mean that the chemical composition (not the ingredients used) of the products in question will be compared, as well as hiring a professional tasting panel. This also limits the copyright of a specific taste to a specific carrier.

To prove infringement, the chemical compositions need not be identical, as this would provide an infringing party with an easy way out. If taste and chemical composition of both products are similar, infringement is more likely.

Michiel Rijsdijk is a partner at  Arnold + Siedsma. He can be contacted at: mrijsdijk@arnold-siedsma.com

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