A Dutch case on whether the taste of a product can be copyrighted has been referred to the Court of Justice at the EU(CJEU).
The case hinged on whether the subject matter is classified as a “work” for the purposes of copyright protection.
It concerned a spreadable cream cheese flavoured with fresh herbs, and a similar rival product also brought to market, alleged to be a reproduction of a product protected by copyright.
To be accepted as a work, it must be an original intellectual creation and the expression of the author’s own creation.
The Dutch Regional Court of Appeal referred the case to Luxembourg for adjudication.
Manufacturers Levola argued that the copyrighted taste concerns the ‘overall impression on the sense of taste caused by the consumption of a food product, including the sensation in the mouth perceived through the sense of touch’.
The Dutch Supreme Court judgment had previously accepted in principle the possibility of copyright protection of a perfume scent in a case involving Lancôme.
The CJEU said that the EU is obliged to consider the provisions of the WIPO Copyright Treaty which declares that copyright protection can be granted to expressions, but not to ideas, procedures, methods of operation or mathematical concepts as such.
The CJEU wrote that “for there to be a ‘work’ as referred to in the Directive, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity.”
The CJEU found that the taste of a food product cannot be identified with precision and objectivity as against a literary, pictorial, cinematographic or musical work, which is a precise and objective expression.
The taste of a food product will be identified on the basis of taste sensations and experiences, which are subjective and variable.
The subjective tasting of the foodstuff depends on age, preferences and consumption habits, it said.
The CJEU’s decision has confirmed that taste is subjective and cannot be identified precisely.
Observers await the implications of this decision for other subjective matters such as smells.