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In this post, we will discuss Copyright and talk about if a taste can be protected via copyright. So can a taste be copyrighted?
Introduction
In recent years, there has been a growing discussion in relation to whether taste should fall within the umbrella of copyright law. Currently, the outlook by the courts is that more traditional works (such as literary and artistic) that are perceived through mechanical senses such as sight and hearing can be copyrightable.
However, concerning products such as perfumes and foods that are perceived through chemical senses, including smell and taste, the law is more uncertain. It is necessary to establish how far copyright protection can go in relation to the principle of taste.
Levola Hengelo BV v Smilde Foods – Can A Taste Be Copyrighted?
Levola Hengelo BV v Smilde Foods is the key case for the discussion of whether taste can be copyrightable as the CJEU gave their view on the matter.
The case was initially held in the Dutch District Court, where Levola (the manufactures of the spreadable cheese Heksenkass) were suing Smilde for copyright infringement in respect of the taste of Heksenkass, as Smilde were manufacturing their own spreadable cheese, Witte Wievenkaas.
Levola argued that Heksenkass was their own intellectual creation, and the cheese created by Smilde had an identical taste and would therefore constitute a reproduction of the work created. This was further confirmed by Levola’s taste expert who concluded that the taste within Heksenkass could be recognised in Wievenkaas as the flavours were almost identical based on the overall impression.
From the perspective of Smilde, their defence was that taste could not be protected by copyright and even if it was, Levola had not demonstrated the original character of the taste of Heksenkass, which is one of the requirements for a work to be protected by copyright. Additionally, if the work could satisfy the threshold of originality, it was argued that the two products differed in relation to their overall impression to the point that there was no reproduction.
The District Court held that Heksenkass was not capable of copyright protection as the cheese was not capable of demonstrating originality without it being tested by the court. Levola decided to appeal the decision.
CJEU’s Decision – Can A Taste Be Copyrighted?
The CJEU noted that both parties had opposing views regarding whether the taste of a food product should be subject to copyright protection. Levola relied on the case of Kecofa v Lancôme which accepted in principle the copyright protection of a scent.
Contrastingly, Smilde submitted that the concept of taste is incompatible with the copyright system, due to the “instability of a food product and the subjective nature of the taste experience precludes the taste of a food product from qualifying for protection as a work”.
The CJEU stated that the taste of a food product could not be pinned down with precision and objectivity unlike other types of work such as literary, artistic, dramatic or musical. Furthermore, it is necessary to ensure that there is no element of subjectivity when identifying the protected subject matter. Therefore, as food products are identified through taste sensations, experiences will vary on each individual’s perception of taste and the environment the product was consumed in. Due to this reasoning, the CJEU agreed with the decision held by the Dutch National Court.
The CJEU had the opportunity to widen the scope of copyrightable subject matters, however they adopted to maintain their restrictive approach by excluding subjectivity.
Manufactures and retailers of food products will be disappointed with the decision in Levola as their products remain unprotected from infringement. The courts relied heavily on the current state of technology being insufficient for precisely identifying the taste of products. If there are major technological advances which improves the court’s ability to define the properties of food products, it could mean that food creations are perceived as sufficiently precise and objective which would therefore meet the courts requirement for defining works.
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By Abhiraj Aujla
References for Can A Taste Be Copyrighted?
Here are some references for Can A Taste Be Copyrighted? – here you can find references related to this article to high authority sites and sources.
- Copyright (Lawdit.CO.UK)
- Levola Hengelo BV v Smilde Foods (OnlineLibrary.Wiley.COM)
- CJEU (European-Union.Europa.EU)
- Dutch District Court (Government.NL)
- Kecofa v Lancôme (IE.Forum.NL)
- Dutch National Court (Government.NL)
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