Flavor and copyright: an intriguing but not plausible couple

The Court of Justice of the European Union, with the ruling of last November 13 (C-310/17), had the chance to clarify that, the taste of a food product cannot be protected by copyright. With the decision at hand, rendered on the basis of the request for a preliminary ruling of the Court of Appeal of Arnhem-Leeuwarden (the Netherlands), the CJEU was asked to determine if according to EU law, weather the taste of a food product could be the subject to copyright protection.

The dispute originally arisen before the Dutch judicial authority involved a cream cheese flavored with herbs, created in 2007 by a Dutch trader who, 4 years later, transferred all his intellectual property rights to the company Levola Hengelo BV. The product was thus marketed and distributed by the same company under the name "Heksenkass" since 2012.

However, in 2012, another Dutch company, Smilde Foods B.V., started producing a similar product called "Witte Wievenkass" for a chain of supermarkets in the Netherlands. Believing that Smilde’s conduct infringed its copyright in relation to the taste of its product, Levola started a claim before the Court of Gelderland against Smilde.

In particular, in Levola’s view, the taste of a food product would correspond to the overall impression that the consumption of the same determines on taste receptors, including the tactile sensation perceived by the mouth. For this reason, claiming that the taste of its product constitutes a proper intellectual creation to its author pursuant to Article 1 of the Dutch copyright law, Levola, in its opinion, ought to benefit from the protection offered by that regulation.

On such basis, the production and distribution on the market of Witte Wievenkass, a product with an almost identical flavor to Heksenkaas, was to be understood as an infringement Levola's copyright.

Once the first instance court rejected the claim presented by Levola, the same company brought an appeal before the Court of Arnhem-Leeuwarden. It was during this latter proceeding that, the second instance court noticed that an interpretative intervention of the CJEU was required in order to determine whether the taste of a food product could benefit from the protection afforded by laws in matter of copyright. In fact, the dispute arisen between the parties focused on the meaning of the notion of "work" pursuant to Directive 2001/29 / EC.

In this regard, the Court of Appeal observed that the qualification of a work requires a double order of conditions to be satisfied.

On the one hand, there is the so-called "originality" requirement. In this view, the work must constitute "an intellectual creation proper to its author" (para. 35).

On the other hand, according to Directive 2001/29/EC, the work ought to be capable of being represented by the elements that constitute its expression as a creation having intellectual nature. Furthermore, the same expression must make its object identifiable with sufficient precision and objectivity, even if such an expression is not necessarily permanent (para. 40).

In the opinion of the CJEU, it is the lack of the aforementioned second order of requirements to prevent the taste of a food from being protected by copyright. In fact, the "flavor" would be an expression unsuitable of both accuracy and objectivity, since the identification of the taste of a food is based on subjective experiences and sensations and, as such, susceptible to vary from person to person.

As a consequence, the descending uncertainty is likely to determine significant complications for both the authorities entrusted with the protection of exclusive rights pertaining to copyright, and for all those economic operators who must be able to identify, in a clear and precise manner, the object of protection afforded to third parties and/or competitors. Moreover, in a broader sense, the aforementioned shortcomings on the side of precision and objectivity are in conflict with the principle of legal certainty.

In addition, as it was highlighted by the CJEU (para. 43), at present time no technical instrument allowing a precise and objective identification of the taste of a food, making it possible to distinguish it from the taste of other products of the same kind, exists.

For all the above-mentioned reasons, the CJEU concluded that the taste of a food cannot be ascribed to the notion of "work" in Directive 2001/29/CE and, therefore, it cannot be subject to the protection afforded by copyright.