DOES EU COPYRIGHT PROTECT THE TASTE OF CHEESE?

23 January 2019

The Court of Justice of the European Union has ruled in a case, where the main question was whether the taste of a cheese product may be eligible for copyright protection under EU law. We summarize the case and answer the question what constitutes a “work of art” under EU copyright law.

The Cheese plagiarism

Heks’nkaas (i.e. ‘Witch’s cheese’) is a cheese spread containing cream cheese and fresh herbs, which was created by a Dutch retailer of vegetables and fresh produce in 2007 and later was manufactured by the company called Levola.

A few years later, Smilde Foods launched its product Witte Wievenkaas ("Wise Women’s Cheese"), a cheese product similar to the above.

Levola brought proceedings against Smilde, claiming that the production and sale of the latter product infringed its copyright on the ‘taste’ of Heksenkaas, since Levola took the view that the characteristic taste of Heks'nkaas was copied, which constitutes a reproduction of its “artwork”.

At first, a parallel was made with judgments on the copyright protection of scents. Levola relied on a Dutch judgment, in which the Supreme Court of the Netherlands recognised the scent of the perfume “Tresor” by Lancôme as a “work” eligible for copyright protection.

Conversely, in a similar case, the French Court of Cassation has categorically rejected the possibility of granting copyright protection to a scent, in its judgment in the Dior case.

Because of the above divergence, the Dutch court referred the question to the Court of Justice of the European Union (“CJEU”) for a preliminary ruling, so the CJEU investigated whether the taste of a food is eligible for copyright protection.

About EU copyright law

Regarding the legal term of “work” EU law refers to the Berne Union Convention, according to which, the expression "literary and artistic works" shall include every production in the literary, scientific and artistic domain, whatever the mode or form of its expression may be. (This is similar in Hungarian copyright law)

I guess it is not clear to you either what "every production in the artistic domain" includes. Since it is a “blanket rule”, it is worth examining previous case-law on the subject for the interpretation.

For example, in the Infopaq case, sections of 11 words randomly cut from newspaper articles were considered as “works”, which is a very low threshold. In the Painer case, CJEU held that portrait photographs may qualify as “works” and enjoy copyright protection. The Court's activism has also emerged in the present case, the judgment serves as a guiding principle for copyright in case of tastes and other 'creations' in the border areas of art.

The decision of the CJEU

The Court defines the term “work” in a general way, as the “expression of intellectual activity”, regardless the form of appearance. The importance of the approach is to loosen the concept that only pictures, musical pieces and other traditional forms constitutes artistic works.

However, in relation to the aspect of "expression", the Luxembourg forum pointed out that the possibility of accurate and objective identification in the case of tastes is lacking.

Unlike in case of other forms 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.

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.

Basically, it is not possible to precisely describe the certain taste to be protected by copyright.

Due to problems with "expression", the Court has ruled that the taste of a food cannot be considered as a "work" and cannot be protected by copyright under EU law.

Conclusion

The "Cheese Case" is another example of an effort to extend the range of “products” eligible for copyright protection. There is a divergence in the practice of the national courts of the EU Member States as shown by the decisions on the copyright protection of scents. The aim of the CJEU is to develop a common EU practice which, - based on the decisions made so far- leaves room for "works" on the boarders of art.

If you work in a creative profession, in order to effectively enforce your rights as an author, you need to know which "creations" may be copyrighted. Therefore, it is advisable to contact a legal expert, as the stakes are usually in the order of millions.

In our next article on this topic we will show you who, and on what basis decides “where the art begins” and we present the most interesting relevant EU and Hungarian decisions.