In a decision handed down on 13November 2018, the Court of Justice of the European Union (the “CJEU”) ruled that the taste of food is not eligible for copyright protection under the copyright directive (Directive 2001/29/EC, the “Directive”).
The CJEU’s decision follows a preliminary ruling request made by the Regional Court of Appeal, Arnhem-Leeuwarden, the Netherlands, whereby the CJEU was asked whether copyright could vest in the taste of a particular food.
The case in question related to a spreadable cheese dip called ‘Heks’nkaas’ created by a Dutch retailer in 2007. The intellectual property rights in ‘Heks’nkaas’ were subsequently transferred to a company called Levola. In 2014, a rival Dutch company launched a food product of the same kind – also a spreadable cream cheese dip - called ‘Witte Wievenkaas’.
Levola argued that the creation of ‘Witte Wievenkaas’ infringed its copyright rights such that the taste of the food product was a reproduction of their earlier work. Levola also argued that the taste of a food product is comparable to the scent of a perfume, the latter of which is recognised by the courts of the Netherlands, but no other European Union court, as being eligible to copyright protection.
The CJEU held that the taste of a food product cannot be protected by copyright as it is difficult to classify taste as a work within the meaning of the Directive. Works eligible for copyright protection under the Directive comprise of artistic, audiovisual, literary and musical works, as well as databases. However, copyright protection may not be granted to ideas, procedures, methods of operation or mathematical concepts. The work in question must be an original intellectual creation and there must be an expression of that original intellectual creation. Moreover, the subject matter seeking protection by copyright must be expressed in an objective manner and with sufficient precision so as to have copyright protection attributed to it.
The CJEU is of the view that the taste of a food product is subjective to the taste buds of each particular person and is dependent upon several factors such as taste sensations, preferences, experiences, consumption habits, as well as age. All of these factors vary significantly across different persons.
For these reasons the CJEU concluded that the taste of a food product cannot be classified as a work as defined by the Directive and is therefore, not eligible for copyright protection under the Directive.