Dutch cheese taste not protectable by copyright, says AG
An advocate general (AG) yesterday advised the Court of Justice of the European Union (CJEU) that the taste of a Dutch cheese cannot be protected by EU copyright law, in an opinion which practitioners have mixed views on.
Daniël Haije, partner at Hoogenraad & Haak in Amsterdam, said AG Melchior Wathelet’s opinion—that taste cannot be identified with sufficient precision to afford it copyright protection—was to be expected.
Jan Jacobi, advocate at Hofhuis Alkema Groen in Amsterdam, said he considers the AG’s opinion to be a disappointment and a missed opportunity to further develop copyright law.
“Not all expressions (capable of human perception) are by nature ‘precise’ or able to be objectively represented, despite them being very much the result of an intellectual creation,” Jacobi said.
In 2014, Dutch food company Levola Hengelo accused Smilde Food of infringing the copyright of the taste of Heks’nkaas, a spreadable cheese product. Smilde made a similar product called Witte Wievenkaas.
The Court of Gelderland (Rechtbank Gelderland) held that it could not determine whether the taste of the product is covered by copyright protection, and dismissed Levola’s complaint.
On appeal, the Court of Appeal for Arnhem-Leeuwarden (Gerechtshof Arnhem-Leeuwarden) requested clarification from the CJEU.
It asked: “Does EU law preclude the taste of a food product—as the own intellectual creation of the author—being granted copyright protection?”
The court also asked whether the “instability” of food products, and the subjectivity of taste, prevents them being eligible for copyright protection.
According to the Dutch court, if the CJEU confirms that taste is eligible for copyright protection, it would also like clarification on what the requirements for that protection might be, and whether the copyright protection of taste is based solely on the taste or also on the recipe of the product.
Yesterday, Wathelet opined that the flavour of a food product does not constitute a ‘work’ eligible for copyright protection because tastes cannot be precisely or objectively identified.
Ascertaining a flavour is a subjective experience and cannot be equated with any ‘works’ covered by the Berne Convention, which governs the protection of literary and artistic works, he explained.
Tobias Jehoram, partner at De Brauw Blackstone Westbroek’s Amsterdam office, agreed that tastes and smells are “simply too subjective to be granted a monopoly”.
“This is not helped by the fact that food products are unstable in taste by nature,” he added.
Jehoram said a ruling in favour of tastes being eligible for protection would lead to legal uncertainty and unjustified claims, which “would have a chilling effect on competition”.
But Willem Hoyng, founding partner at Hoyng Rokh Monegier in Amsterdam, added that he “cannot see why somebody who creates a slogan gets protection but somebody who creates a smell or a taste does not”.
Haije added that the AG did not rule out the provision of copyright protection for foodstuffs in the future “should technique enable a precise and objective identification of the object of protection (taste)”.
A spokesperson for Smilde said the company is pleased with the opinion, but noted that the decision of the CJEU has yet to come.
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