The Court of Justice of the European Union ruled on 13 November 2018 (Case C-310/17) that the taste of a food product is not protected under copyright law. The case was between the Dutch companies Levola and Smilde. Levola is the producer of “Heksenkaas”, and claimed that Smilde’s “Witte Wievenkaas” infringed the copyrights on its cheese, because the taste was too similar (and was therefore a copy or reproduction of it). The court in the Netherlands asked the European Court of Justice (hereinafter “ECJ”) whether the taste of food can be protected by copyright.

Copyright: originality and concrete form

The ECJ relied on the two classical conditions for copyright protection of a work. Firstly, the work must be original, i.e. the author’s own intellectual creation. Secondly, the work must have a concrete form of expression.

Subjectivity of tastes: no copyright

Usually, it is mainly the “originality” of a work that is the center of the discussion, but here the question was whether the taste of a cheese is sufficiently “concrete”, in the sense that the taste can be identified accurately and objectively. The ECJ indicated that in this assessment it must be clear what exactly is protected. According to the ECJ, this is not the case for the taste of food products. The ECJ states: “Unlike, for example, a literary, pictorial, cinematographic or musical work, which is a precise and objective form of expression, the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable since they depend, inter alia, on factors particular to the person tasting the product concerned, such as age, food preferences and consumption habits, as well as on the environment or context in which the product is consumed.”

The ECJ thus rejects the copyright protection of a taste, because a taste experience rests too much on a subjective experience, and cannot be expressed with sufficient objectivity and precision. If, in the future, technical means are developed to objectively and accurately represent a taste or smell, then tastes and smells may be eligible for copyright protection.

It should also be noted that the Dutch Supreme Court ruled differently in 2006 in a similar case (the Lancôme case), and accepted the possibility of copyright of the smell of a perfume. In contrast, the French Court of Cassation has categorically rejected copyright protection of a fragrance in 2013. Thus, there was quite a bit of disagreement about whether tastes or fragrances can benefit from copyright protection. It seems that these discussions are now coming to an end, in the sense that copyright protection for tastes and fragrances becomes very difficult (except in cases where they can be objectively and precisely identified).

Tastes, flavours and fragrances as trademarks?

Registering a taste or scent as a trademark will likely encounter the same problem. The ECJ ruled in 2002 that a sign that is not visually perceptible (it was a smell) can be registered as a trademark provided it is capable of graphic representation. In the meantime, the requirement of a graphic representation has been dropped for EU trademarks, but since tastes and fragrances cannot, in the current state of technology, be identified or represented with sufficient clarity and precision, they do not, in principle, enjoy protection under trademark law either.

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Author: Bart Van Besien