There's no accounting for tastes – CJEU denies copyright protection for flavour
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In its 13 November 2018 decision, the Court of Justice of the European Union ("CJEU") finally put an end to a long-running dispute over the taste of a Dutch cream cheese called "Heksenkaas" (in English: "Witches' cheese").
The judgment followed on from a dispute between the Dutch companies Levola and Smilde, who both produce a similar cream cheese. Levola claimed that Smilde's product "Witte Wievenkaas" infringed upon its copyright in the taste of "Heksenkaas". Levola invoked the Dutch Supreme Court's earlier ruling in Lancôme v Kecofa, which allowed copyright protection for a particular scent. Smilde on the other hand, denied any subsistence of copyright in the taste of a product.
The CJEU put an end to the discussions and categorically denied copyright protection for the taste of a food product. To reach this conclusion, the CJEU firstly examined the definition of a copyrighted "work" – an autonomous concept of EU law. The CJEU held that in order to classify as a "work", the subject matter must (1) be "original in the sense that it is the author's own intellectual creation", and (2) be the "expression of the author's own intellectual creation". With this definition, the CJEU went against the warning in AG Wathelet's Opinion not to mix up the concept of "work" and the requirement of "originality".
The deciding factor for both the A-G and the CJEU however, was that the taste of a food product cannot be pinned down with precision and objectivity. The identification of taste is essentially subjective and variable and also technical means cannot (yet) precisely and objectively identify the taste of a food product. Keeping in mind legal certainty, the CJEU ruled that for a copyright protected "work" to exist, it must be expressed in a manner that makes it identifiable with sufficient precision and objectivity. The CJEU thereby imported a criterion that is more known in trademark law following the CJEU Sieckmann decision than for copyright protected works.
As the A-G already noted, technical developments could one day change the subjective nature of identifying taste and may lead to taste being protected by copyright. For now, however, it seems to be tough cheese for Levola.