On 13 November 2018, the Court of Justice of the European Union (CJEU) ruled that the taste of a food product could not be classified as a "work" within the meaning of Directive 2001/29/EC and that national member state legislation could not be interpreted differently (Case C-310/17). While the CJEU did not deny the copyrightability of tastes in principle, it held that "the current state of scientific development" does not allow the precise and objective identification of the taste of a food product.
The Facts of the Case
In the case before the referring court, a Dutch cheese manufacturer took the view that the production and sale of a spreadable cheese product infringed its copyright in the taste of one of its own cheese products and brought proceedings before a Dutch court. The Regional Court of Appeal, Arnhem-Leeuwarden, Netherlands, decided to stay the proceedings and refer to the CJEU the question of whether the taste of a food product is precluded from being protected by copyright under Directive 2001/29/EC.
The CJEU ruled that the taste of a food product could not be classified as a "work" within the meaning of Art. 2 lit. a) of Directive 2001/29/EC.
The Court ruled that for there to be a work, the subject matter protected by copyright had to be expressed in a manner that would make it "identifiable with sufficient precision and objectivity," especially to competitors. However, the current state of scientific development does not provide a " technical means" to make 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." Unlike, for example, literary and musical works, which are precise and objective forms of expression, the taste of a food product could not "be pinned down with precision and objectivity." It could be identified by third persons "essentially [only] on the basis of taste sensations and experiences, which are subjective and variable."
It is likely that the CJEU's ruling can be extended further to scents and other sensory input.
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