14 November 2018Copyright

CJEU’s Dutch cheese decision leaves uncertain future, say lawyers

Yesterday’s Court of Justice of the European Union (CJEU) ruling that the taste of a Dutch cheese cannot be protected by copyright law may come as little surprise, but the implications are unclear, according to lawyers.

In the much-awaited decision, the CJEU concluded that because the taste of a food product cannot be identified with precision and objectivity, it cannot be classed as a ‘work’ under the copyright directive (2001/29/EC).

In 2014, Dutch food company Levola Hengelo accused Smilde Food of infringing the copyright of the taste of Heks’nkaas, a spreadable cheese product, through the sale of a similar product called Witte Wievenkaas.

On appeal, the Court of Appeal for Arnhem-Leeuwarden (Gerechtshof Arnhem-Leeuwarden) requested clarification from the CJEU on whether the taste of food could be protected by copyright.

“Unlike, for example, a literary, pictorial, cinematographic or musical work, which is a precise and objective expression, the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable,” said the CJEU.

The sensations and experiences depend on a number of factors particular to the person tasting the product, including age, food preferences and consumption habits, as well as on the environment or context in which the product is consumed.

Tobias Cohen Jehoram, partner at De Brauw Blackstone Westbroek's Amsterdam office and representative of Smilde Food in the case, said that when the CJEU was satisfied with the pleadings from Smilde and didn’t need to hear the rebuttal to the “many comments” made by Levola, he had an “inkling this might go the right way”.

Cohen Jehoram added that if the court had found that taste could be protected by copyright, it would substantially change market conditions.

He said that “with vague and imprecise copyright claims, parties could monopolise the market for a certain kind of product, stifling innovation in that area and having a chilling effect on new products being developed”.

“It would also be odd to suddenly have monopolies everywhere on the food and drinks market, where these did not exist in the past, without that leading to any major problem or any injustice being felt. We would be ‘mending’ something which is not broken,” concluded Cohen Jehoram.

Alex Borthwick, of counsel at Powell Gilbert’s London office, believes that the decision was to be expected, given the uncertainty that would arise if taste were found to be protectable, particularly because of its subjectiveness.

However, the CJEU’s finding that it is not possible in the “current state of scientific development” to precisely and objectively identify the taste of the food product may create ambiguities in the future.

The reference “may have left the door open to an appropriate claim in the future, in the event it is possible to define a taste with enough precision to allow a meaningful comparison to be made with a taste of a second product”, said Borthwick.

Penelope Thornton, senior associate in Hogan Lovells’ London office, agreed that the CJEU’s conclusion was not a surprise, but believes that the reasoning raises some concerns.

There’s currently no definition of a copyright ‘work’ at EU level, meaning that member states have flexibility about which categories of works are protectable.

Thornton explained that this has led to some works being protected in one EU country that wouldn’t be protected in another, such as the smell of perfume.

“Rights owners will be concerned that the CJEU is attempting to harmonise the meaning of ‘works’ at EU level and that this new test could limit the ability for rights holders to protect non-conventional categories of work, such as the smell of perfume or the taste of food throughout the EU,” added Thornton.

In agreement, Tom Lingard, partner at Stevens & Bolton in Guildford, UK, said that the decision was not surprising given the advocate general’s opinion.

He added that the decision re-asserts the traditional role of copyright to protect creative works, and will “certainly keep closed the floodgates that may have opened from other industries”, such as perfumes and cosmetics, if the case had been decided differently.

Sven Klos, a lawyer at Klos in Amsterdam and Levola’s representative, said that he always knew the case would end up before the CJEU since the protection of smells and tastes under EU copyright law is unchartered territory.

Klos explained that he was surprised by the court’s ruling, which he believes has created new law.

“Not only has the court harmonised the concept of ‘work’ throughout the EU, it has now also added requirements to it that previously were nowhere to be found in EU copyright legislation and case law,” said Klos.

He added the rule that the work must be identifiable with sufficient precision and objectivity will give rise to a “whole new discussion and probably a new line of case law as to what ‘precision’ and ‘objectivity’ require when copyright protection is claimed”.

For background on the decision, click here.

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More on this story

13 November 2018   The taste of a Dutch cheese cannot be protected by EU copyright law, according to Europe’s highest court.
26 July 2018   An advocate general yesterday advised the Court of Justice of the European Union that the taste of a Dutch cheese cannot be protected by EU copyright law, in an opinion which practitioners have mixed views on.