Cabinet Beau de Loménie
Can the taste of a food product be a copyright work?
Will the Court of Justice of the European Union give its recipe?
Dennis Voerman is the creator of a very successful spread named "Heks'nkaas". In 2011, he assigned to a company called Levola the copyright relating to the recipe, its method of preparation and the taste features of his product.
Because a company Smilde launched a competing spread ‘Witte Wievenkaas’ similar to its own spread, Levola sued the latter for copyright infringement.
Levola requested for Smilde to be prohibited from manufacturing and marketing the ‘Witte Wievenkaas’ spread on the grounds that it was reproducing the original taste of Levola’s product. The company argued that the product, due to a particular combination of specific tastes and unique “mouth-feel” caused by its viscosity and its consistency, would cause the same impression on the consumer’s sense of taste.
On June 10, 2015, the Dutch court of first instance rejected these claims on the grounds that Levola had not specified which element or combination of elements of the product’s taste were original and were imprinted with the author’s personality, adding that it was nto up to the Court to proceed with a testing session.
This issue is somewhat reminiscent of the question of protection for the smell of a perfume which, even though it has not been decided by the Court of justice, has been highly debated.
Hearing the case on appeal, the judges first proceeded with a comprehensive study of the applicable legislation and case law.
After having cited Article 9 (1) of the WTO Agreements, ratified by Council Decision of 22 December 1994, they recall the provisions of Article 2 (1) of the Berne Convention (Paris Act of 24 July 1971) for the protection of literary and artistic works, to which the various European Union member state are parties, and which define as protected works "all products in the literary, scientific and artistic domain irrespective of their mode or form of expression ".
Then they referred to provisions in the Directive 2001/29 / EC of the European Parliament and Council of 22 May 2001 regarding the harmonization of certain copyright aspect and related rights in the information society, and to the Infopaq decision of 16 July 2009 (CJEU, 16 July 2009 n ° C-5/08), to indicate that copyright is intended to apply only to ‘an author’s own intellectual creation’.
Turning then to national law, they mentioned a decision of the Dutch supreme court which ruled that the human limits for distinguishing odors, and the fact that perception differs from one individual to the other, do not prevent an odor from being such a creation as long as it consists in a production that is perceptible to humans, with individual and original character that bears the imprint of its author’s personality. (HR, June 16, 2006, LJN AU8940, Kecofa / Lancôme).
One will recall that in France the Supreme Court requires a creation to take a physical and material form. Accordingly, French Judges have refused to acknowledge copyright protected for a perfume because “copyright protects creations in their perceptible form, only insofar as this is identifiable with sufficient precision to enable its communication; that the fragrance of a perfume which - apart from its manufacturing process, which is not an intellectual work - does not take a form having this characteristic and cannot therefore benefit from copyright protection”. (Cass. Com., 10 December 2013, appeal 11-19872).
For their part, the judge s of the Arnhem-Leeuwarden Court of Appeal in their decision of 23 of May 2017 (Case No. 200.178.423) decided that there were serious uncertainties in relation to knowing whether the taste of a food product could be protected through copyright and that a decision of the ECJ was necessary for allowing them to decide the case at stake.
They therefore raised the following questions (Case n° 272772) :
- Does the law of the European Union prohibit the taste of a food product , taken as an author own’ s intellectual work, from being protected by copyright ?
- If so, what are the requirements for such protection?
The CJEU will first have to define what can constitute a work protectable through copyright and thus, if a creation that is perceived by taste can be considered as such, before contemplating the conditions for its protection.
Moreover, a creation that can be perceived by taste or smell is characterized by its potential instability and the subjective character of its perception by the consumer. So the court will have to decide whether these elements prevent copyright protection.
Similarly, in defining the author's exclusive rights Articles 2 and 5 of Directive 2001/29 / EC refer to the concept of reproduction, with various exceptions. The Court will also have to decide if this construction is compatible with the protection by copyright of the taste of a food product.
It will be interesting to see if the Court of Justice takes up this issue, and opens up the prospect of protection for these atypical creations that are perfumes or food products.
It will also be recalled that the new Trade Mark Regulation (EU) of the European Parliament and Council of 16 December 2015 deleted the requirement for graphical representation when filing trademarks and refers now to a representation that enables competent authorities and the public to determine precisely and clearly the object of the claimed protection. As a result, it is not excluded that odors could be filed as trademarks in the future.
A revolution is may be on the way....