The taste of a foodstuff, such as spreadable cheese, cannot be protected under copyright, according to Advocate General Melchior Wathelet in the conclusions he returned to the Court of Justice of the EU on 25 July in case C-310/17.
The Court was asked for a preliminary ruling by the Court of Appeal of Arnhem-Leeuwarden (Netherlands). The main proceedings were between two Dutch companies: firstly, Levola, which has owned the intellectual property rights to the spreadable cheese with crème fraîche and fine herbs, 'Heksenkaas', since 2011 and, secondly, Smilde, which has produced a product called 'Witte Wievenkaas' for a Dutch supermarket chain since 2014. Levola took legal action to have the production and marketing of Witte Wievenkaas stopped on the grounds that the cheese infringes its copyright to the 'taste' of Heksenkaas. Before returning its judgment on the substance, the Dutch court asked the Court of Justice whether the taste of a food such as Heksenkaas can be protected by copyright.
In his conclusions, the Advocate General finds against Levola, for three main reasons: he considers that only “works” can benefit from copyright protection and in order to be defined as such, it must be possible to perceive a “work” by visual or auditory means, which is not the case with a taste, smell or touch. He then observes that there are no provisions of international law that protect the taste of a food by copyright. Finally, the Advocate General points out that the original expressions of a work must be identifiable with sufficient precision and objectivity. However, there is currently no precise and objective technique to identify a taste or smell.
Consequently, Wathelet concludes that the taste of a food does not constitute a work within the meaning of EU law and that a taste cannot enjoy the right of reproduction, the right of communication of works to the public or the right of distribution set out in Directive 2001/29. The conclusions in this case can be consulted at: https://bit.ly/2LA5PEg. (Original version in French by Sophie Petitjean)