EU Court of Justice says no copyright in taste

Earlier this week, the Court of Justice for the European Union (CJEU) issued its judgement in the Levola, Heks'nkaas case.

For those that may not know, Levola, a Dutch vegetable producer, issued proceedings against Smilde Foods BV alleging that it's Witte Wievenkaas product infringed the taste of its spreadable cheese product named Heks'nkaas. The case involved the attempt by Levola to argue that the taste of cheese can be protected by copyright. The case was originally dismissed in 2015 in the Dutch courts but then made its way to the CJEU.

Unfortunately for Levola, the CJEU has cited, in coming to its judgement, that the taste of food cannot be protected by copyright because a taste cannot be identified with precision; a taste is subjective. The outcome of the case was highly anticipated as it was said that the case would be important in clarifying what is meant by the word 'work'; a word which currently has no legislative definition.

In coming to its decision, the CJEU cited, in order for the taste of food to be classified as a 'work', and thus be eligible to be protected by copyright, it must be an expression of the authors own intellectual creation and it must be identifiable with "sufficient precision and objectivity".  As such, the CJEU ruled that the taste of a food product cannot be said to be a 'work' and so cannot be protected by copyright.

For now, the extent of copyright protection has not been extended throughout the EU, a blow to those wishing to protect the less conventional parts of products, such as smell.

If you have any questions on the above, please do not hesitate to contact the team at McDaniel & Co. on 0191 281 4000 or legal@mcdanielslaw.com.