• CJEU considered copyright protection of 'sensory works' 
  • The taste of a foodstuff cannot be protected by copyright in the EU because it is too subjective a concept
  • Technology may allow this in future

What's it about?

The Dutch manufacturer of 'Heks'nkaas' ('witch's cheese') brought a claim for copyright infringement against a competitor who sold a similarly tasting product. The claimant sought to extend a Danish national line of authority that a scent could potentially be a protected copyright 'work' in relation to the concept of taste.

The Dutch court made an Article 267 reference to the CJEU to clarify whether it would be contrary to EU law (including the InfoSoc Directive (Directive 2001/29)) to recognise copyright protection relating to the taste of a food.

The CJEU ruled that the taste of a foodstuff is incapable of being a 'work' for the purposes of copyright law because taste cannot be recognised with sufficient precision or objectivity.

Why does it matter? 

EU member states may not recognise the taste of a food as a 'work' capable of copyright protection. 

The CJEU stated that precise identification of 'works' is essential for economic operators such as traders and courts to be able to understand when they might be infringing, i.e. how to navigate a copyright regime. The taste of a food failed this test, as it is inherently subjective and influenced by factors such as the age and preferences of the consumer and the environment in which it is tasted.

This ruling suggests an approach that could be applied to determine whether other 'sensory works' might be capable of copyright protection. EU national courts currently diverge on areas such as the scent of a perfume.

Now what? 

Whilst the CJEU highlighted that the inherent subjectivity of the experience of 'taste' was the primary issue, it also considered whether technological methods could be used to objectively identify a taste. It found that this is not currently possible, but this leaves open the possibility that the taste of a food might become a 'work' capable of copyright protection, if this hurdle is overcome in future.

Levola Hengelo BV v Smilde Foods BV Case C-310/17

For further information on this or any other IP related matter please contact on Justine Winstanley-Brown or 0113 209 2583