In a preliminary ruling on a submission by the Gerechtshof Arnhem-Leeuwarden (Court of Appeal, Arnhem-Leeuwarden, The Netherlands), the ECJ (C-310/17) ruled,
„that the taste of a food product does not constitute a ‘work’ within the meaning of Directive 2001/29.“
and thus does not enjoy any copyright protection.
This judgment has been delivered in the context of a dispute between Levola Hengelo BV (‘Levola’) and Smilde Foods BV (‘Smilde’).
„Heksenkaas is a spreadable dip with cream cheese and fresh herbs. It was created in 2007 by a Dutch retailer of vegetables and fresh produce. By an agreement concluded in 2011 and in exchange for remuneration linked to the turnover to be achieved by its sale, its creator transferred to Levola his intellectual property rights in that product. Since January 2014, Smilde has been manufacturing a product known as ‘Witte Wievenkaas’ for a supermarket chain in the Netherlands.
Taking the view that the production and sale of Witte Wievenkaas infringed its copyright in the ‘taste’ of Heksenkaas, Levola brought proceedings against Smilde before the Rechtbank Gelderland (Gelderland District Court, Netherlands).
The ECJ found that the taste of a foodstuff can not be classified as a “work” within the meaning of Directive 2001/29 and thus does not enjoy copyright protection, based on the following central considerations:
Accordingly, for there to be a ‘work’ as referred to in Directive 2001/29, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form.
That is because, first, the authorities responsible for ensuring that the exclusive rights inherent in copyright are protected must be able to identify, clearly and precisely, the subject matter so protected. The same is true for individuals, in particular economic operators, who must be able to identify, clearly and precisely, what is the subject matter of protection which third parties, especially competitors, enjoy. Secondly, the need to ensure that there is no element of subjectivity –– given that it is detrimental to legal certainty –– in the process of identifying the protected subject matter means that the latter must be capable of being expressed in a precise and objective manner.
The taste of a food product cannot, however, be pinned down with precision and objectivity. 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.
Moreover, it is not possible in the current state of scientific development to achieve by technical means a precise and objective identification of the taste of a food product which enables it to be distinguished from the taste of other products of the same kind.
It must therefore be concluded, on the basis of all of the foregoing considerations, that the taste of a food product cannot be classified as a ‘work’ within the meaning of Directive 2001/29.
However, for the production and the recipe might be protected by design or patent. According to the ECJ, a patent was granted for the manufacturing process of Heksenkaas in 2012. However, this does not necessarily protect against a very similar or identical taste being achieved by other means.