protected by copyright


It is a judgment of the Court of Justice of the European Union which was awaited…

Last Tuesday, the Grand Chamber of the Court ruled that the flavor of a food product (its taste) cannot be protected by copyright digital trademark monitoring.

The references of this case are as follows: C – 310/17, Leola Hengelo BV v Smiled Foods BV; and the judgment of 13 November 2018 is available here.

The facts giving rise to the dispute

The manufacturer of a cream cheese spread with herbs accused another economic operator of selling to supermarkets a cheese spread which had the same flavor (the same taste) and which therefore infringed its rights to author on this flavor.

The Dutch courts were seized of this dispute and the Court of Appeal (Gerechtshof Arnhem-Leeuwarden) considered it necessary to question the Court of Justice of the European Union on the possibility of protecting a food flavor by copyright.

The arguments of the parties in this regard were, in fact, diametrically opposed:

  • According to the manufacturer of the cheese spread, which claimed copyright, “the flavor of a food product can be qualified as a literary, scientific or artistic work protected by copyright. (…) By analogy, in particular, on the judgment of June 16, 2006 of the Huge Read der Nederland (Supreme Court of the Netherlands), Lancôme (NL: HR: 2006: AU8940), in which the latter court admitted, in principle, the possibility of recognizing a copyright on the smell of a perfume ” (§22 of the judgment);
  • According to the economic operator accused of counterfeiting, “the protection of flavors does not comply with the copyright system, which only covers visual and auditory creations. Furthermore, the instability of a food product and the subjective nature of the taste perception would preclude the classification of a flavor of a food product as a work protected by copyright. In addition, the exclusive rights of the author of an intellectual property work and the limitations to which these rights are subject would, in practice, be inapplicable to flavors” (§23 of the judgment).

Questions from the Court of Appeal (Gerechtshof Arnhem-Leeuwarden)

In this context, the Court of Appeal hearing this dispute put a series of questions to the Court of Justice of the European Union which can be summarized as follows (I am paraphrasing):

  • Does European Union law prevent the flavor of a food product, as an intellectual creation specific to its author, from being protected by copyright?
  • The list of works included in the Berne Convention only gives examples of visual and / or auditory works; does this mean that creations other than visual and / or auditory (egg taste, smell, etc.) are excluded from copyright protection ?;
  • Does the (potential) instability of a food product and / or the subjective nature of the perception of a flavor preclude the copyright protection of the flavor of a food product?
  • If copyright protection for a food flavor is possible, does this protection only cover the flavor as such or (also) the recipe of the food product ?;
  • If the copyright protection of a food flavor is possible, how should the judge behave in determining the protect ability of such a flavor? Should he be content to taste and appreciate according to what he tastes, what he smells, what he tastes…? Or should it have regard to flavor composition, recipe, etc.?

In short, very beautiful and interesting questions since, beyond the question of the flavor itself, the Court of Appeal questioned the question of recipes (however, we know that the protectable nature of recipes is much discussed and revenue struggling to be recognized for copyright protection).

Likewise, the court of appeal raised very important practical questions in terms of evidence and the judge’s office: what should the judge base himself on in order to judge whether or not a flavor (assuming it or, in principle, capable of protection) is original and whether or not it is infringing? Should the judge according to his own experience (his own tasting, his own perception, etc.)?

The judgment of the Court of Justice of the European Union was therefore expected, moreover because the education that would be delivered by the highest European court would be likely to have repercussions on other non-visual creations and not -additive, such as olfactory creations, perfumes, etc.

The reasoning and the decision of the Court of Justice of the European Union

After recalling that a food flavor could only claim copyright protection if it can be qualified as an original work within the meaning of copyright, the Court of Justice examines the concept of a work. (the central question being here, not that of originality which is assessed on a case-by-case basis, but that of the belonging of a flavor in principle to the category of work – the reasoning is in two stages: is there a work?; if so, is this work original?).

In §§39 and 40 of the judgment, the Court of Justice considers that a work within the meaning of copyright requires more than a simple idea and therefore implies a concrete expression or a concrete formatting (of the idea), which expression or formatting must be identifiable and this in a sufficiently precise and objective manner, even if a work within the meaning of copyright must not be permanent (this last precision as to the permanence of the work is important since in principle in copyright, there is no criterion of fixation; the work must not be fixed on a medium or be the object of a deposit in order to be able to be protected; moreover, ephemeral works and purely oral works are subject to copyright protection):

  • §39: “(…) under the terms of Article 2, paragraph 1, of the Berne Convention, literary and artistic works include all productions in the literary, scientific and artistic field, whatever the mode or the form of expression. Moreover, in accordance with Article 2 of the WIPO Copyright Treaty and Article 9, paragraph 2, of the [TRIPS] Agreement , it is the expressions and not the ideas, the procedures , methods of operation or mathematical concepts, as such, which may be the subject of copyright protection (…) ” ;
  • §40: “Consequently, the concept of“work”referred to in Directive 2001/29 necessarily implies an expression of the object of protection under copyright which makes it identifiable with sufficient precision and objectivity, even if this expression is not necessarily permanent”.

In §41 of the judgment, the Court of Justice drives the point home and tries to justify in another way the need for sufficient identification of the work and sufficient objectification of it by referring to the legal security. How will a third party know if they can act freely or if they are infringing the copyright of another person if the work and its outlines are not clearly defined or definable? And precise? According to the Court:

“On the one hand, the authorities responsible for ensuring the protection of the exclusive rights inherent in copyright must be able to know clearly and precisely the subject matter thus protected. The same applies to individuals, in particular economic operators, who must be able to identify with clarity and precision the subject matter protected for the benefit of third parties, in particular competitors. On the other hand, the need to eliminate any element of subjectivity, harmful to legal certainty, in the process of identifying the protected object implies that the latter can be the object of a precise and objective expression”.

Applying these criteria to the present case, the Court of Justice finds that the flavor of a food product cannot be identified either precisely or objectively:

By Anurag Rathod

Anurag Rathod, as a blogger he used to spread all about app-based business, startup solution, on-demand business tips and ideas and so on.

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