As the flavour of a food product cannot be qualified as a "work", it cannot benefit from copyright protection, the EU Court of Justice ruled in a judgment delivered on Tuesday 13 November (Case C-310/17).
In the Netherlands, Levola, which since 2011 has held the intellectual property rights to the Heksenkaas fresh cream and herbal spread cheese, has brought an action before the Dutch courts to prohibit the marketing of Witte Wievenkaas, a spread cheese produced by Smilde, on the grounds that it infringes its copyright in the "flavour" of Heksenkaas within the meaning of the Directive (2001/29).
In its judgment, the Court endorsed the Advocate General's reasoning and ruled against Levola (see EUROPE 12070).
According to the European judge, in order to be protected by copyright, the flavour of a food product must be qualified as a "work" within the meaning of the Directive. Such a qualification presupposes that the object concerned is an original intellectual creation and requires an "expression" to make that creation identifiable with sufficient precision and objectivity.
Indeed, within the meaning of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights, to which the EU has acceded (Council Decision 94/800), and the WIPO Treaty approved by the EU (Council Decision 2000/278), expressions may be protected and not ideas, procedures, methods of operation or mathematical concepts.
In this context, the Court finds that it is impossible to identify precisely and objectively the flavour of a food product. Unlike a literary or cinematographic work, the identification of the flavour of a food product is based on subjective and variable taste sensations and experiences that are not possible by technical means in the current state of scientific development. (Original version in French by Mathieu Bion)