This Tastes Right - CJEU Rules Out Copyright Protection for Taste of Cheese

Sometimes a case comes around that both baffles, and excites intellectual property specialists. Something that makes you wonder why it had gone that far in the first place (let alone the costs), but nonetheless is something that we all want an answer to from the courts - and more often than not never do. Such a case has been the cheese taste copyright case, which seeks to answer the age old question; can you have copyright in the taste of cheese? This writer cannot even count the number of times he's wondered this very question, and finally, we have an answer, as the CJEU handed down their decision earlier this week.

The case of Levola Hengelo BV v Smilde Foods BV concerned the cheese "Heksenkaas", which is a spreadable dip containing cream cheese and fresh herbs, which was created by a food retailer in 2007, which then sold the rights to Levola. The manufacture process for Heksenkaas has been granted a patent in 2012, but no other registered rights vested in the product. Levola's competitor, a fellow cheese-making company, Smilde, sold a product called "Witte Wievenkaas", which, according to Levola, infringed on the 'taste' of Heksenkaas, and brought proceedings against Smilde, ultimately ending up with the CJEU.

The referring court asked the CJEU two questions relating to the protection of food through copyright.

The CJEU tackled the first question, which, in essence, asked "...whether Directive 2001/29 must be interpreted as precluding (i) the taste of a food product from being protected by copyright under that directive and (ii) national legislation from being interpreted in such a way that it grants copyright protection to such a taste".

The Court considered that, for copyright to vest in the 'taste' of cheese, it would need to be classified as a 'work' under the Directive. This comprises of two cumulative factors: (i) the work has to be 'original' in the sense that it is the author's own intellectual creation; and (ii) only something which is the expression of the author's own intellectual creation may be classified as a 'work'.

In addition to the Directive, the Court noted that the above would also have to comply with the Berne Convention, more specifically Articles 1-21 (which deal with the requirements for copyright protection under the Convention). Specifically, copyright protection would only be afforded to "...expressions, but not to ideas, procedures, methods of operation or mathematical concepts as such".

Following the provisions above the Court considered that for there to be a 'work' under the Directive, "...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". This means that authorities need to be able to identify the subject matter of what is being protected clearly and precisely, and for others in the marketplace to ascertain the same. The subject matter of protection should also not be subjective, but one that can be observed objectively bu anyone.

Applying this to the question at hand, the Court noted that "...[t]he taste of a food product cannot, however, be pinned down with precision and objectivity", as it is not in a tangible or observable form (although one can experience it through the tasting of the goods). There are also many variables in the sensations and experience of any particular taste, which change over time and through consumption habits etc. It is also not possible, at least in the state of current scientific developments, to precisely and objectively identify the taste of a food product that distinguishes it from other food products (although this writer wonders if a deep analysis of the food's compounds would get us closer, even though this, again, changes with the ingredients, their age, storage methods and the like).

The Court therefore concluded that the taste of a food product therefore cannot be classified as a 'work' under the Directive, and would not be protected by copyright. Similarly, national legislation cannot protect the same subject matter in compliance with EU laws.

Due to the negative answer to the first question, the second question was not necessary to be dealt with.

The CJEU was clearly correct in their decision when it came to the taste of cheese, as it is something that one cannot easily pin down and therefore clearly protect. Once food chemistry and science develop to a point where we can isolate these differences, it might be possible to actually show what the taste of a given food item is, and potentially protect it under copyright. While waiting for this, we can eat our imitation Heksenkaas with reckless abandon.