Design and Copyright Working Group

The Design and Copyright Working Group would like to thank Will Warne for contributing this article on an important recent copyright case. 

Copyright protection in the taste of cheese? 

On 29th May 2017, two questions were referred to the CJEU by the Dutch courts seeking guidance on whether the taste of food may be protectable by copyright and, if so, how infringement could be assessed.

The story behind this reference, case C-310/17 Levola Hengelo, began in 2007 when a local grocery in the Netherlands started to sell, on a small-scale, a cheese spread under the name "Heks'nkaas" ("Witches' Cheese" in English). This local product became very popular and in 2011 a company called Levola Hengelo bought the secret recipe with the aim of rolling out the cheese across the rest of the Netherlands. The agreement between the grocery and Levola Hengelo stated that all copyright in the recipe, method of preparation and taste would be transferred to Levola Hengelo.

The popularity of the cheese led to other similar products being launched and, in 2012, Levola Hengelo announced that it would seek to enforce its copyright in the taste of Heks'nkaas. Levola Hengelo subsequently launched proceedings for copyright infringement against a number of its competitors. Although two of these actions (against European Food Company B.V. and Smilde Foods B.V.) have recently resulted in judgments against Levola Hengelo, finding that it had failed to demonstrate that copyright subsists in the taste of Heks'nkaas, the Dutch courts have now referred two questions to the CJEU relating to subsistence and infringement of copyright in taste.

These two questions can be summarized as follows:

1) (a) Does Union law preclude copyright protection of the taste of a food product, as an author's own intellectual creation? In particular: 

(b) Is copyright protection precluded by the fact that all the examples of 'literary and artistic works' in Article 2(1) of the Berne Convention only relate to creations which can be perceived by sight and/or by hearing?

(c) Does the (possible) instability of a food product and/or the subjective nature of taste preclude it being eligible for copyright protection?

(d) Does the system of exclusive rights and restrictions (Articles 2 to 5 of the InfoSoc Directive), preclude the copyright protection of the taste of a food product?

2) If taste can be granted copyright protection:

(a) What are the requirements for copyright protection of the taste of a food product?

(b) Is the copyright protection of a taste based solely on the taste as such or (also) on the recipe of the food product?

(c) What evidence should a party who alleges infringement of a copyright-protected taste, put forward? Is it sufficient to present the food product to the court so that, by trying it, the court can form its own opinion as to whether the taste of the food product meets the requirements for copyright protection? Or should the applicant (also) provide a description of the creative choices involved in the taste composition and/or the recipe on the basis of which the taste can be considered to be the author’s own intellectual creation?

(d) In infringement proceedings, how should the court determine whether the taste of the defendant's food product infringes any copyright in the taste of the applicant's food product? Is the decisive factor whether the overall impressions of the two tastes are the same?

Although most practitioners will be sceptical about the prospect of copyright protection in a taste, it would at least seem possible that the CJEU may find that taste can be subject to copyright protection. Any such protection would seem to have to by way of the taste being considered to be an artistic work. However, as taste is not a traditional physical art form, the 'work' (if there is one) would appear to need to be a work of artistic craftsmanship. Although UK case law has indicated that works of artistic craftsmanship require an aesthetic element, there is certainly an argument to be made that there is an artistic element in the creation of food products and certainly many chefs, if asked, would consider themselves to be artists.

The result of question 1(b) is potentially easier to predict, as the answer would be expected to rise or fall on the outcome of question 1(a). Question 1(c) throws up some more interesting points: while the possible instability of food products should not in itself be a concern (as a perishable recording medium will not be a bar to copyright protection), the subjective nature of taste may be more problematic. While this question on the subjective nature of taste is a little unclear, it appears to relate to the fact that the sensation of taste is a subjective experience that is hard to describe, meaning it may be difficult to define the scope of a work which is a taste. Although the assessment of the scope of any artistic work will always be subjective, it is far easier to describe how something looks or sounds than how something tastes. This difficulty in defining the scope of protection would generally be expected to preclude protection. In relation to question 1(d), it is not clear, on the face of it, how any of Articles 2-5 of the InfoSoc Directive of themselves could preclude copyright protection in the taste of food.

Question 2 throws up some interesting queries for the CJEU to grapple with. In particular, it appears to ask in question 2(b) whether any copyright of a food product stems from the taste itself or as a consequence of making the cheese to a copyright protected recipe. This raises interesting parallels with the protection of products s made to design drawings.
Whatever the outcome, it is clear that there will be significant interest in the CJEU's decision.

Will Warne
Associate, Bird & Bird LLP