On 13 November 2018, the Court of Justice of the European Union (the "ECJ") handed down its judgment in Levola Hengelo holding that the taste of food cannot be subject to copyright protection (Case C-310/17).

The dispute arose between Levola Hengelo BV ("Levola"), the parent company of a group producing and marketing fresh foodstuffs, and Smilde Food BV ("Smilde") which produces food products under its own trade mark.

Levola had purchased all rights related to "Heksenkaas", a popular cream cheese, and had put this product on the market in 2012. Two years later, Smilde started the production and sale of a similar product, "Witte Wievenkaas". Convinced that these practices infringed its copyright in the taste of "Heksenkaas", Levola brought an action against Smilde for copyright infringement.

At first instance, the Dutch court dismissed the action on 10 June 2015 on the ground that it was unable to assess whether the taste of the product is covered by copyright. It held that Levola had not put forward any elements capable of proving the original character and personal imprint of its product's taste and it was not for the judge to taste and try to describe a product's savour.

On appeal, the Arnhem-Leeuwarden Court of Appeal decided to stay the proceedings and refer questions for a preliminary ruling to the ECJ asking, in essence, (i) whether the taste of a product – as its author's own intellectual creation – qualifies for copyright protection under Directive 2001/29 of 22 May 2001 on the harmonisation of specific aspects of copyright and related rights in the information society (the ''InfoSoc Directive'') and (ii) whether the intrinsic instability of taste can interfere with such protection. If the ECJ were to answer the first question positively, the Court of Appeal enquired (i) which requirements the taste of a product should satisfy to be covered by copyright and (ii) whether the protection would apply to the taste as such or rather to the recipe of the product. The Court of Appeal also sought guidance as to how a court should assess the taste of a product in practice and, likewise, which elements an applicant should put forward when seeking protection.

The ECJ, following the line of reasoning of AG Wathelet in his opinion (see VBB on Belgian Business Law, Volume 2018, No. 7, available at www.vbb.com), found that while the InfoSoc Directive harmonises a number of rights and related exceptions and limitations which concern the exploitation of "works", it does not contain a definition of what constitutes a "work", nor does it make any reference to the laws of individual Member States. The ECJ concluded that in view of the need for a uniform application of EU law and the principle of equality, the concept of "work" should be given an autonomous and uniform interpretation throughout the European Union.

In the light of this, the taste of food only qualifies for copyright protection if it can be classified as a "work" under the InfoSoc Directive. The ECJ put forward two cumulative conditions for determining what constitutes a work under the Directive. First, the subject matter concerned (i.e., taste of food) must be original in the sense that it is the author's own intellectual creation. Second, only something which is the expression of the author's own intellectual creation may be classified as a work.

According to the ECJ, for a "work" to exist as referred to in the InfoSoc Directive, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form. The ECJ added that authorities responsible for ensuring that the exclusive rights inherent in copyright are protected must be able to identify, clearly and precisely, the subject matter so protected. The ECJ also wanted to eliminate any "element of subjectivity" which would run counter to the principle of legal certainty. It explained that the taste of a food product cannot "be pinned down with precision and objectivity" since taste is identified on the basis of "taste sensations and experiences, which are subjective and variable since they depend, inter alia, on factors particular to the person tasting the product concerned, such as age, food preferences and consumption habits, as well as on the environment or context in which the product is consumed".

Moreover, the ECJ emphasised that the current state of scientific development does not make it possible to achieve by technical means a precise and objective identification of the taste of a food product which enables it to be distinguished from the taste of other products of the same kind.

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