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Dutch company cheesed off with Advocate General opinion that there is no copyright in the taste of cheese

On 25 July 2018, Advocate General Wathelet gave his opinion (not yet published in English) on the preliminary question as to whether the taste of a product could be considered a 'work' for purposes of EU law and therefore attract copyright protection. According to the Advocate General, EU copyright law should not be extended to the taste of food.

Last year we informed you about the Dutch cheese saga (click here for previous blog).  The hearing for the case took place on 4 June 2018 (at which Levola, Smilde, the Netherlands, French and UK Governments and the EU Commission all made oral observations), after which, the entire IP community was waiting for the opinion of the Advocate General.

On 25 July 2018, Advocate General Melchior Wathelet gave his opinion (click here for opinion (not yet published in English)) on the preliminary question as to whether the taste of a food product could be considered a 'work' for the purposes of EU law and therefore qualify for copyright protection.  According to the Advocate General, EU copyright law should not be extended to the taste of food. 

Background

The dispute is between Dutch companies Levola Hengelo BV (Levola) and Smilde Foods BV (Smilde). Levola produces a garlic and leek cheese spread called Heks'nkaas. Levola believes that Smilde has infringed the copyright in the taste of Heks'nkaas by producing a spreadable cheese called Witte Wievenkaas with the same taste as Heks'nkaas. Levola claims that the taste of Heks'nkaas qualifies for copyright protection under EU law and in particular, that the taste of a food product can be categorised as a 'literary, scientific or artistic work'. Levola justified its position by referring to a 2006 judgment of the Supreme Court of the Netherlands (Lancôme v Kefoca) in which the Supreme Court held that the smell of perfume, may, in principle, be eligible for copyright protection. The Dutch Court of Appeal Arnhem-Leeuwarden was not convinced by this interpretation of the scope of copyright protection, especially given there has been diverging case law on this point by supreme national courts, with the French Supreme Court categorically rejecting the possibility of protecting the smell of a fragrance. It therefore referred questions (see questions here in previous blog) to the CJEU for a preliminary ruling.

Advocate General Opinion

According to the Advocate General, EU copyright law should not be extended to the taste of food. He advised the European Court of Justice that copyright could only cover something that can be seen or heard.

The flavour of a food product cannot be reconciled with any of the ‘works’ protected by this [WIPO Copyright] Treaty….and, to my knowledge, no other provision in international law protects, through copyright, the flavour of a food product.

How did the Advocate General come to this conclusion?

The concept of 'work' and the requirement of intellectual creation

First, he looked at whether the taste of a product constitutes a 'work' under EU copyright law (InfoSoc Directive 2001/29). Under the Directive, the term for a 'work' is not defined, nor do the provisions contain any reference to national law in relation to the concept of a 'work'. As such, according to settled case law, the term 'work' must be regarded as an autonomous concept of EU law, the meaning and scope of which must be identical in all Member States and it is up to the CJEU to give that term a uniform interpretation.

Referring back to the CJEU decisions in Infopaq, Painer and Football Dataco, the Advocate General analysed the requirement for a 'work' to be original in the sense that it is the author's own intellectual creation and where there has been creative freedom and the object reflects the personality of the author.

However, it is important to remember that originality alone is not sufficient. In addition to the requirement that the object in question must be original, it must also be a 'work'. The two notions are distinct and must not be merged or amalgamated. So, it is not correct to determine that because a work is sufficiently original, it is automatically deemed a 'work'.

Does taste constitute a 'work'?

The Advocate General stated that as there was no definition for the term 'work' under the Directive, it was necessary to consider the provisions of the Berne Convention which state that "literary and artistic works include all productions of the literary, scientific and artistic field, whatever the mode or form of expression". The Berne Convention also contains a non-exhaustive list of 'literary and artistic works' to be protected. The Advocate General's view was that the list made no reference to taste, nor to works similar to taste such as smells or fragrances, although it did not expressly exclude them. However, the Berne Convention only refers to works that are perceived by visual or sound means, such as books, musical and photographic works. There are no references to works that can be perceived by taste, smell or touch. Therefore it followed that the taste of food should not fall within the scope for copyright protection.

The Advocate General went on to explore the "idea/expression dichotomy", arising from the principle under EU law that copyright protection extends only to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such (Art 9 TRIPS). According to the Advocate General, copyright does not protect the recipe, which is more of an 'idea'.

Further, these original expressions must be sufficiently precise and objectively identifiable and can only be perceived by sight and hearing. According to the Advocate General, precise and objective identification of taste is not possible. The taste experience has a subjective character and can be perceived by senses other than sight and hearing. It is, for example, hard to split up salt and sugar by just the sight:  it is the taste that makes the difference.

Interestingly, the Advocate General made an analogy between copyright and trade mark law citing the Sieckmann case (C-273/00) (click here for our article referring to this case), which dealt with the question of whether a sign, in this case, the smell, which is not in itself capable of being perceived visually, could constitute a trade mark. The CJEU held that it was possible provided that the representation was 'clear, precise, self-contained, easily accessible, intelligible, durable and objective'.

The Advocate General concluded that in light of the current state of the art, the precise and objective identification of a taste of smell is currently impossible. A judge is not able to identity a taste in a subjective manner; tastes are transient, volatile and unstable. Therefore taste cannot be considered a 'work' in EU law and has no copyright protection under EU law. 

The Advocate General did not rule out that taste might have copyright protection in the future as a result of technological developments.

Comment

The IP community has mixed views on the opinion of the Advocate General. However, according to the majority, this opinion – that taste cannot be identified with sufficient precision to afford it copyright protection – was to be expected. On the other hand, we could argue that the Advocate General has missed an opportunity to further develop copyright law. In this case, however, especially when it comes to food and a copyright protected taste, it would lead to too much uncertainty and possibly the onset of some unjustified claims.  So for now, Levola is likely to be left rather cheesed off with the opinion, given that in the majority of cases, the CJEU follows the Advocate General's advice. We look forward to seeing what the CJEU decides and we will be sure to keep you briefed!

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