This summer, the Dutch Attorney General (the AG) gave the opinion that taste cannot be protected under copyright law.

In the Dutch case of Levola Henglo v Smile Foods, the Claimant, a cheese maker, claimed that the Defendant had copied the taste of a particular cream cheese spread (a link to the judgment can be found here although there is currently no English version).

The case does consider the definition of what can constitute “work” under European copyright law and whether such “work” is protectable.

The Background

“Heks’nkaas” is a brand of spreadable cheese containing particular herbs, resulting in a certain taste. The Claimant claimed that the Defendant’s own brand “Witte Wievenkaa”, tastes too similar to its own and sought to claim copyright infringement.

The Dutch courts originally dismissed the case stating that the taste lacked originality and personal character (see the judgement here in Dutch only). The Claimant company was granted an appeal and the European Court of Justice was asked to consider the following questions:

1. Can the taste of a food product be protected under European copyright law?

2. Does a food product constitute “literary and artistic work” as protected under the Bern Convention?

3. Does the personal nature of taste prevent it from being protected under copyright law?

4. Is the system of exclusive rights and restrictions under the InfoSoc Directive 2001/29 (InfoSoc Directive) applicable to taste?

Prior to the European Court of Justice’s ruling, the AG has given an opinion.

The Opinion

The AG noted that the concept of “work” is not easily defined across European law, and that there was a need for consistency. However, the AG determined that something that is seen or heard, but not perceived by any other senses, could constitute work. The AG considered definitions of “work” in both the Berne Convention and the InfoSoc Directive, but neither proved definitive.

Berne Convention and Infosoc Directive

Whilst the AG recognised that the Berne Convention does list examples of what may be defined as “work”, including under article 2(1) visual and audible matter only, the AG recognised that the list is not exhaustive, and does not explicitly exclude fragrances, flavours or products designed to be tasted, touched or smelt.

Looking at the InfoSoc Directive, it was understood that work need not be in a material nor in fixed form, and that again technically a smell or taste could qualify.

Case Law

The AG also reviewed European case law, including Football Data Co (judgement here), a well as Infopaq (judgement here), recognising the need for the creator’s own creativity and personality to be apparent from the “work” in order to qualify for copyright protection. This was used to help dissect what originality meant but it was not clear whether the threshold was met in this instance.

The AG considered the case of Ralf Sieckmann (judgement here), quoting at paragraph 55, the need for work to be “the representation is clear, precise, self-contained, easily accessible, intelligible, durable and objective”, although this case concerned trade marks.

Conclusion

In this way the AG noted that taste cannot be protected by copyright as it fails to meet this hurdle, not being clear, precise or objective. The opinion appears to be one of logic, as what one person tastes could be vastly different to what someone else tastes, despite the product being the same.

It was recognised that a process cannot be protected by copyright, for example a recipe itself is not protectable but the results of such may be. Food products can be protected in other ways including protecting the manufacturing process, the brand and the product name and logo.

Inconstancies

As of yet the issue of smell as a protectable “work” under copyright has been unclear and inconsistent.

Under Lancôme v Kecofa (original trade mark judgement here) in the Dutch courts, the Claimant sought to protect its Tresor (translation of Treasure) brand of fragrance under trade mark laws, in an attempt to prevent the sale of the Defendant’s similar fragrance Female Treasure.

Its attempt failed as consumers were deemed not to be confused, yet following an update to Dutch laws, the Claimant tried again, and included a joint claim for breach of copyright of its fragrance.

The trade mark claim failed but the copyright in fragrance claim was successful (judgement in Dutch here). Yet only three days before, the French courts ruled that a perfume was not protected by copyright- as Dior was trying to protect its Dune fragrance.

In this regard there has been some confusion and inconsistencies as to whether non visual and audio works are protected under copyright.

Opinion

This decision differs from the one made in the Lancôme case perhaps because the smell of a perfume is what makes a perfume unique and identifiable – they are protectable where they are perceptible and original. Whilst smell and taste are both subjective, the difference lies perhaps in that the smell of a perfume is the result of applied knowledge, whereas the taste of a food is somewhat more subjective, and depends more on the palate of the consumer.

It must be remembered that a manufacturing process is protectable under trade secrets and the law of confidence, and if the Claimant could prove any breach of these, the AG’s opinion may have been different.

Whether the European Court of Justice agree with the AG’s opinion will certainly be keenly watched.