The case is easily summarized: cheese producer Levola Hengelo claims that its competitor Smilde copied the taste of the specially produced “Heksnkaas” (a cheese spread) and considers this as a copyright infringement. The cheese producer’s claim was rejected by the Rechtbank Gelderland, the court in first instance. After filing the appeal, the Gerechtshof Arnhem-Leeuwarden now has to decide on the lawsuit. But is there any copyright protection for the taste of “Heksnkaas“? In order to answer this question, the court turned to the CJEU, which has so far essentially remained silent on the subject of the protectability of copyright protected works.
In his Opinion published on 25 July 2018, Advocate General Wathelet argued in detail against the possibility of protecting the taste of cheese. Referring to international copyright treaties and drawing a parallel to the Sieckmann case (C-273/00; on the protectability of smells under trademark law), the Advocate General came to the conclusion that works protected by copyright must be recognizable with sufficient accuracy and objectivity – which, however, must be denied in the case of the taste of cheese.
The ruling of the CJEU is short and concise. In contrast to the Advocate General, the CJEU does not rely on trademark law. Rather, the Court independently deduces that copyright protection can only exist for works that are “identifiable with sufficient precision and objectivity” and thus agrees with the Advocate General. The taste of a food product depends on subjective and variable taste sensations and experiences. Factors that play a role include for example age, food preferences and consumer. The taste cannot be identified objectively by technical methods (at least not today). The subjectivity would lead to legal uncertainty, which would manifest itself, for example, in the fact that even the competent authorities would not be able to clearly define the scope of the protection. Therefore, the taste of “Heksnkaas” is not a copyrighted work due to a lack of an identifiable work.
The current ruling does resonate. Even in the light of the concept of a copyright work being an open one, it requires a certain level of manifestation. A work can be transient, as is the case with street art or stand-up comedy for example. Also, it is not of relevance whether the targeted public links the same associations with a work or not. In this respect, denying work quality to the taste of cheese should not rest on the fact that this taste might be perceived differently by the people. The key issue is that, unlike a spontaneous artistic performance, the mere taste of food lacks the sufficient embodiment of the original creation to define the quality of the work. In this respect, the Luxembourg judges have rightly denied protection for the taste of cheese in the copyright sense.
Authored by Nils Rauer and Lea Kaase