The taste of a food product is not eligible for Copyright protection


Last November 13, the European Court of Justice (ECJ) ruled that the taste of a food product is not eligible for Copyright protection because it cannot be classified as a «work».

The ECJ thus ruled on the reference for a preliminary ruling concerning the interpretation of the concept of a «work» within the meaning of Directive 2001/29/EC. This question was raised in connection with the dispute between Levola Hengelo BV and Smilde Foods BV concerning Smilde's alleged infringement of Levola's intellectual property rights relating to the taste of a food product:

«Heksenkaas» is a spreadable dip with cream cheese and fresh herbs, which was created in 2007 by a Dutch trade who transferred the intellectual property rights to the Dutch company Levola.

Levola, considered that the production and sale of the product 'Witte Wievenkaas' by the company Smilde infringed its copyright in view of the fact that, first, the taste of 'Heksenkaas' is a work protected by copyright and, second, that the taste of 'Witte Wievenkaas' is a reproduction of that work. On that basis, Levola requested the Dutch courts to order Smilde to withdraw the product. The Regional Court of Appeal asked the ECJ whether the taste of a food product can be protected under the Copyright Directive.

In its judgment, the Court of Justice emphasised that, in order to obtain copyright protection under the Directive, the taste of a food product must be capable of being classified as a «work». In particular, two conditions must be met:

  • The subject matter concerned must be original in the sense that it is the author’s own intellectual creation.
  • And, there must be an ‘expression’ of that original intellectual creation.

Under international law, copyright protection may be granted to expressions but not ideas, procedures, methods of operation or mathematical concepts as such.

Therefore, so that there is a «work» as referred to in Directive 2001/29/EC, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity.

On that basis, the Court of Justice held that that the taste of a food product cannot be identified with precision and objectivity, since its identification is based on sensations and taste experiences that are subjective and variable, as this depend on the person tasting the product.

In addition, it states that, in the current state of scientific development, the technical resources available do not make it possible to identify the taste of a food in a precise and objective manner which makes it possible to distinguish it from the taste of other products of the same nature.

It therefore concludes that, as the taste of a food product cannot be classified as a «work» under the Directive, it does not enjoy copyright protection.


Written by: Cristina García Alzina





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