Cheese Case Kicks Up A (Copy)right Stink

For some time now there has been a long held want from brand owners to expand intellectual property rights to cover unconventional aspects of products. For example, there has been an attempt to trade mark the smell of fresh cut grass for tennis balls. We have also seen a further attempt to apply intellectual property rights to a new, less conventional aspect of a product in the Heks'nkaas case, which involves the application of copyright protection to the taste of cheese. In 2015 this case was initially dismissed in the Dutch courts, however it has now made its way to the Court of Justice of the European Union (CJEU). It will certainly be interesting to see whether the CJEU gives much guidance on whether EU law allows copyright protection to be stretched to cover taste and what the requirements for the subsistence of copyright protection will be.

The upcoming case is likely to be of great importance in clarifying, what is meant by 'Work' due to the fact there is no legislative definition of the word. In past cases the CJEU has held that copyright protection arises any time a 'work' is 'its authors own intellectual creation' but readers hope that the Heks'nkaas case will revisit the defining of the word 'Work' to make the law clearer on this point. Ultimately the court will have to decide whether cheese can fall into the definition of 'work'.

So, what relevance will this new CJEU case have in the UK? In the UK section 1 of the Copyright, Designs and Patents Act 1988 restricts the types of works that can be eligible for copyright protection. In the past, this has proved challenging for those attempting to extend the protection to less conventional works and has meant that, ultimately, copyright protection has been denied to those that have tried.

Despite the speculation surrounding the upcoming case, it could potentially be of limited importance to the UK if a hard Brexit does in fact go ahead. However, the Heks'nkaas case will be decided when the UK is still part of the EU which may mean that it could still be of importance based on the government's indication that all EU law will be transposed into UK law through a 'Great Repeal Bill' on the day of Brexit. Either way, it will be interesting to see how the case plays out and to what extent copyright protection may be extended within the EU.