THE TASTE OF FOODS CANNOT BE PROTECTED BY COPYRIGHT, SAYS THE AG

On 25 July 2018, Advocate General Wathelet issued his opinion in an interesting case pending before the Court of Justice of the EU (CJEU) (C-310/17) concerning copyright over the taste of a food product.

The AG took the view that EU law precludes the taste of food from being protected by copyright, essentially because:

• the notion of “literary and artistic works” in the Berne Convention includes only subject-matter that can be perceived through sight or hearing, therefore implicitly excluding those perceivable through other senses like taste, smell or touch; and
• artistic works should be identified in a precise and objective manner in order to allow third parties to understand their scope of protection. This is not the case for the taste of food products.

Business impact

This case is particularly interesting as it is the first time that the CJEU will rule on the copyright of the taste of a food product and, more generally, on the notion of copyright work which is not defined under Directive 2001/29/EC ("InfoSoc Directive").

Food scientists in major food businesses may be disappointed not to obtain a new layer of protection for creating new tastes.

The opinion of the AG confirms the difficulty of ensuring copyright protection for the taste of a food product, as well as for perfumes, as observed in the field of trade marks.  Even though the new EU Trade Mark Regulation does not require a sign (any longer) to be capable of being graphically represented in order to be registered as a trade mark, in practice it is not yet possible to register a taste or a smell as a trade mark as the subject-matter of protection cannot be determined with clarity and precision with generally available technology.

If the CJEU were to follow the opinion of the AG in its Judgment, many producers of food products and perfumes will remain disappointed that their creative efforts are not recognised by legal protection through copyright.

Facts

"Heksenkaas" is a dutch cream cheese created in 2007 whose rights belongs to Levola Hengelo BV. In 2014 Smilde Foods BV started manufacturing and distributing in The Netherlands a cream cheese called "Witte Wievenkaas".

According to Levola, Witte Wievenkaas infringed Levola’s exclusive right in the taste of Heksenkaas and therefore, in 2015, started civil proceedings against Smilde in The Netherlands.

Levola lost in the first instance, on procedural grounds, and appealed the decision.

The Appeal Court of Arnehm-Leeuwarden, doubting the possibility for the taste of a food product to be protected under EU Copyright law, referred two main questions to the CJEU:

• Does EU law preclude the taste of food – as the author’s own intellectual creation – from being protected by copyright?
• If not excluded, what are the requirements for copyright protection of the taste of a food product?

AG Opinion

According to AG Wathelet, the InfoSoc Directive does not provide a definition of "work". It is therefore up to the CJEU to give an interpretation of that term which has an uniform application in the EU. Member States cannot grant protection to taste of foods, if this goes beyond Directive.

Furthermore, the protection of certain subject-matter, such as artistic or literary works, presupposes that they are intellectual creations, in the sense that they reflect their author’s personality and are original. This has been already clarified by the CJEU in some decisions (Infopaq C‑5/08 and Panier C‑145/10). However, according to AG Wathelet, originality is not sufficient for a subject-matter to enjoy copyright protection. It also needs to be regarded as a "work".

As InfoSoc Directive does not provide a definition of work, it is possible to refer to the definition in the Berne Convention (which the EU has to apply pursuant to the WIPO Copyright Treaty).

According to the Berne Convention, the expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever the mode or form of its expression. A non-exhaustive list of such works is also provided, which does not explicitly include or exclude taste. However, as the subject-matter included therein are only those which can be perceived through sight or hearing, the AG's view is that those perceivable through other senses, like taste, smell or touch, shall not be considered as artistic works.

Furthermore, although InfoSoc Directive does not include an obligation to fix a work in a material form, artistic works should be identified in as precise and objective manner in order to allow third parties to understand the scope of their protection. This is not the case with taste.   In this regard, the AG refers, by analogy to the position with trade marks, to the CJEU decision in the Sieckman case (C-273/00). There the Court held that a trade mark may consist of a sign which is not in itself capable of being perceived visually, provided that it could be represented graphically, and that the representation is clear, precise, self-contained, easily accessible, intelligible, durable and objective (note: the graphical representation is no longer a trade mark requirement pursuant to the new EU Trade Mark Regulation).

The AG therefore advised the CJEU to rule that EU law precludes the taste of food from being protected by copyright.

Authors