Copyright In Cream Cheese

At the end of last month, Attorney General (AG) Wathelet issued his opinion to the Court of Justice of the European Union (CJEU), advising that no EU copyright protection should vest in the taste of cheese, or any food product. Can you brie-lieve it?

Case details

The AG's opinion was sought by the Dutch, Arnhem-Leeuwarden Appeals Court in the case of Levola Hengelo BV v Smilde Foods BV (Case C-310/17). Here, Levola took action against Smilde, arguing that Smilde's 'Witte Wievenkaas' infringed their copyright in the flavour of their 'Heks'nkaas' cheese as it had the same taste and was therefore a reproduction of their 'work'- both being cream cheese products. Levola based its claim on the case of Lancôme Parfums Et Beauté et cie S.N.C. v. Kecofa B.V. where Dutch courts held that perfume, if original, could be protected by copyright where perceptible (through smell in that instance).

The Dutch Appeal Court turned to the CJEU for clarification as to whether EU law would prevent the taste of a food product being protected by copyright.

AG's opinion

In giving his opinion AG Wathelet had to determine what fell within the realms of a copyright 'work' under the InfoSoc Directive (Directive 2001/29/EC) and the Berne Convention.

AG Wathelet considered the scope of protected literary and artistic works, as provided for in the Berne Convention, and concluded that a 'work' has to be something which is seen or heard but not perceived through any other senses. Additionally, AG Wathelet held that "original expressions should be identifiable with sufficient precision and objectivity" - which taste cannot be as it is...