The CJEU has ruled that copyright cannot subsist in the taste of a food product. The ruling has implications not only for the food industry but also for the perfume houses.
Taste-alikes
This was a reference from the Netherlands arising out of a dispute involving supermarket ‘copycat’ products. Levola Hengelo (Levola), owned the rights in a very popular cream cheese called Heks’nkaas – witches’ cheese. Smilde Food, produced a similar cream cheese or dip that was called Witte Wievenkaas – referring to mythological ‘white women’ - which it sold to supermarkets including Aldi. Levola claimed that Smilde’s product infringed its copyright in the taste of Heks’nkaas.
But tastes vary…
In giving its judgment, the CJEU emphasised that the concept of a ‘work’, capable of being protected by copyright, should be regarded as an autonomous concept of EU law and defined in the same way throughout the EU. Copyright would subsist only where the protected subject matter was “expressed in a manner which makes it identifiable with sufficient precision and objectivity” to provide legal certainty. The taste of a food product could not be regarded as a copyright work because taste sensations and experiences varied according to factors such as age, individual preferences, environment and context. In the current state of scientific development at least, it was not possible to define a taste objectively.
Healthy competition
The CJEU’s rejection of copyright in a taste was widely expected, not only because of the uncertainties inherent in taste and what would constitute copying – for example, would Pepsi infringe Coca Cola? - but also because many would say that copyright was never intended to cover this sort of product but should largely be confined to literary and artistic subject matter. Under English law at present it is not, in principle, illegal to copy a taste provided that other rights, such as rights in confidential information, are not affected. This may be regarded as no more than healthy competition.
Copyright in fragrances not definitively excluded
The CJEU’s decision will be a disappointment to the perfume houses as many of the objections the Court makes to copyright in taste are likely to apply to fragrances also. There have been a number of conflicting decisions in Europe about whether copyright can subsist in a perfume. For example, in Lancome v Kecofia a Dutch court found that Lancome’s Tresor enjoyed copyright protection whereas in Lancome v Modefine the French court ruled that copyright does not protect fragrances. However, the CJEU does not specifically exclude copyright in a fragrance in this ruling, especially if it is possible to define a perfume more objectively than a taste. We may perhaps expect to see a reference to the CJEU in relation to copyright in perfume in the not too distant future.
Implications for UK copyright law
Under English domestic copyright law copyright can only subsist in defined categories of work, which do not include food products (S.1 Copyright Designs and Patents Act 1988). Even though the CJEU rejects the idea of copyright in cheese in this case its approach makes it clear that under EU law copyright is not confined to defined categories in this way but may arise in other subject matter where relevant conditions are met. This is consistent with earlier CJEU pronouncements; for example it has previously indicated that copyright could subsist in a graphic user interface, which is difficult to reconcile with the current English copyright categories. It is not clear whether after Brexit the English courts will be willing to keep pace with any future expansion of copyright to non-traditional subjects (such as potentially perfume) which may be introduced at the European level. This is an area to watch.
Case: C-310/17 Levola Hengelo BV v Smilde Foods BV 13/11/18
Tom Lingard