Should a flavour be copyrightable? The Advocate General thinks not, considering its current subjective nature. But does the decision open the door for a future copyrightable cheese taste?
The main question at hand, submitted to the CJEU by the Gerechtshof Arnhem-Leeuwarden (the Court of Appeal of the Netherlands), is whether or not the taste of a food product can be protected by copyright under EU law as an intellectual creation of an author.
The question arose when Smilde Foods BV (“Smilde”) was sued by Levola Hengelo BV (“Levola”) for copyright infringement, the alleged infringing product being spreadable cheese with supposedly the same taste as the plaintiff’s product.
According to Levola, the taste of a food product can qualify as a literary, scientific or artistic work, entitled to copyright protection. Levola based its arguments on the judgement delivered by the Supreme Court of the Netherlands on 16 June 2006 (Lancôme ECLI: NL: HR: 2006: AU8940), in which the court found that, in principle, a taste or a fragrance may be considered to be copyrighted. Further, Levola defined the copyright to a flavour as “the holistic impression that the consumption of the food induces on the taste buds, including the sensory impression in the mouth, which is perceived by the sense of touch” (office translation).
On the other hand, the referring court stated that the French courts categorically have rejected that a flavour may be copyrighted (see e.g. judgement by the Chambre Commerciale, 10 December 2016, no. 11-19.872). Consequently, the European case law is inconsistent in this regards.
Advocate General Melchior Wathelet (“AG Wathelet”) advised the CJEU in his decision C-310/17 that the taste of a food product should not be copyrightable. As foundation for his arguments, AG Wathelet stated that it is not sufficient that the object in question is “original” (which is often seen as the main requirement for copyright), but it also has to be a “work”. AG Wathelet continues by stating that a food product cannot be compared to the type of works protected by the Bern Convention for the Protection of Literary and Artistic Works.
In addition, AG Wathelet went back to basics and analysed the issue in the light of the “idea/expression dichotomy”, i.e. that the recipe (idea) cannot be copyright protected, but only the way it is expressed (expression) – provided it is original. Further, this requires that the expression is objectively recognisable with a certain accuracy. Consequently, a taste could, in theory, be copyrightable if it was possible to “graphically depict” it. However, taste is subjective, why an accurate and objective identification is, as of today, impossible.
Nonetheless, this reasoning is interesting as AG Wathelet states that “it seems that […] objective identification of a taste or a smell is currently impossible” and “The fact that tastes themselves are ephemeral, volatile and unstable, goes against, in my opinion, that they can be precise and objectively identified and, consequently, their qualification as a work for the purpose of copyright” (office translation and underlining added). In other words, the conclusion is that if a taste could be objectively identifiable, it might be eligible for copyright protection. This goes hand in hand with the fact that one can, at least in theory, obtain trademark protection for a smell – which could be argued to be as subjective as a taste (c.f. e.g. the famous grass smelling tennis balls).
Taking this into consideration, we can find ourselves in a future where the taste of a spreadable cheese (the expression of an idea) actually can obtain copyright protection – if the taste is objectively graphically depict and original enough.
