The Cambridge Dictionary defines 'TASTE' as "the flavor of something, or the ability of a person or animal to recognize different flavors".1
Levola Hengelo BV v. Smilde Food BV2
Last year, an interesting issue with respect to copyrightability of unconventional works was raised before EU's highest legal authority, the Court of Justice, European Union. A Dutch food producer, Levola Hengelo, had sued Smilde Foods, for infringing its copyright over the taste of a cheese spread. The Levola product, known as Heks'nkaas, or also known as Witches Cheese, is made of cream cheese and herbs and vegetables including parsley, leek and garlic. On the other hand, Smilde's herbed cheese dip contained many of the same ingredients, and was named Witte Wievenkaas, which also made a reference to witches. While, the issue with respect to trademark infringement was resolved, the issue now before the Court was – can the taste of the food be subject to copyright protection?
Does it smell like Copyright?
Levola, in this case, had relied on a Dutch Supreme Court ruling in Lancôme v Kefoca3 where it was held that the smell of a perfume is eligible for copyright protection. The Supreme Court of the Netherlands, in this case, stated that 'scent' was protectable under the Dutch copyright law, as it a) could be recognized by sensory perception; b) possessed an original character as it is composed of an original mix of ingredients that are not only quantifiable by the senses but are in fact substantial and constant enough to be considered as an authored work capable of copyright protection; and c) bore the personal stamp of the author as it was created by the famous "nose" Sophie Grossman, who called it her "Hug me" perfume.
This was in stark contrast to the judgment of the French Court de Cassation which had held that the smell of a fragrance was not eligible for copyright protection as it was a result of a 'simple implementation of a skill' that cannot be identified with sufficient precision.
For a work to fall under the ambit of Copyright protection, the same needs to be expressed in a manner that it is identifiable with 'sufficient precision and objectivity'. The court formulated that taste of food cannot be identified objectively and that it is in fact 'subjective and variable' and open to personal biases, that is to say that the taste of a particular dish may be identified differently by different people and the same may change over time. Further, the court remarked that at present the world lacks the technical means to make a precise and objective identification of the taste of a particular food dish so that it is capable of being distinguished from any other food dish of the same kind/type.
In the light of this judgment, there is a high likelihood for future prosecution with respect to claiming copyright protection for nonconventional works. It would be interesting to see how courts would rule/order in extending copyright protection in relation to nonconventional works. The overall idea of seeking copyright protection with respect to the essence of a food dish gets increasingly blurred in a world that is obsessed with social media, where everything is showcased for the world to see. A freshly prepared dish is posted on social media platforms by food bloggers/Instagrammers for the world to see and admire, leading to rampant copying, further blurring the line between art and proprietary commerce4.
In order to succeed in a copyright case the proprietors/companies would have to uncover a way to objectively describe the taste of their food products.
The Berne Convention allows for a wide interpretation of what constitutes copyrightable material. India, even though, a signatory to the Berne Convention, follows a closed copyright regime. But with time and technological advancements, the Indian courts have also recently passed progressive judgments favoring copyright protection in non-conventional works like sound and combination of colors (even a single color). Hence, this decision might not pose an immediate legal impact on countries like India, owing to the closed copyright regime, but it would be exciting to see the legal ramifications of the same in near future.
1 Cambridge Dictionary, Definition of Taste, also available at https://dictionary.cambridge.org/dictionary/english/taste, (last accessed on 8th February, 2019).
2 Levola Hengelo BV v. Smilde Food BV, C-310/17.
3 Lancôme v Kefoca,
4 Leslie Wu, "Can Taste Be Subject To Copyright?", FORBES,https://www.forbes.com/sites/lesliewu/2018/07/31/ can-taste-be-subject-to-copyright/#766e13b16c94 (last assessed on 18th February, 2019).
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