Cheesed Off: Taste Is Not Eligible For Copyright Protection Deirdre Kilroy

Author:Deirdre Kilroy
Profession:Matheson
 
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Intellectual property law is essential to protecting a food business in a competitive market. A food business should have a clear understanding of the intellectual property rights available to protect its market position. Intellectual property law is constantly evolving, which makes a recent attempt by a cheese manufacturer to protect the taste of its product using copyright particularly interesting.

The European Court of Justice (the "CJEU") has ruled that the taste of food cannot be protected by copyright as it cannot be "pinned down with precision and objectivity". This decision delineates a limit in terms of product protection for food manufacturers, and in terms of non-traditional copyrights more generally.

In this update we explain the background to this interesting case, what it means for food producers concerned with protecting their goods and what IP rights protect food products and processes.

Background

Levola is the Dutch owner of a spreadable dip with cream cheese and herbs, "Heks'nkaas" (witches' cheese). It had argued that the production and sale of "Witte Wievenkaas" (wise-women's cheese) by another Dutch manufacturer, Smilde, infringed its copyright in the taste of Heks'nkaas.

Levola argued that taste, like a literary or artistic work, can and should be protected as a copyright work. Smilde countered that the instability of a food product, and the subjective nature of the taste experience, precludes it from copyright protection.

The Judgment of the CJEU

The CJEU stated that the taste of food must be capable of classification as a "work" within the meaning of the InfoSoc Directive1 in order to avail of copyright protection.

To qualify as a copyright work taste must satisfy the tandem conditions of being the original intellectual creation of the author; and being expressed in a manner which makes it "identifiable with sufficient precision and objectivity", even if that expression is not necessarily in permanent form.

The CJEU stressed the need to be able to clearly and precisely identify the subject matter to be protected, and the elimination of any element of subjectivity in the process of identifying that subject matter.

It ruled that taste is inherently subjective. Taste is based on sensations and experiences which depend on "factors particular to the person tasting the product concerned such as age, food preferences and consumptions habits, as well as on the environment or context in which the food is consumed".

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