This article was first published in the March/April 2019 issue of CITMA Review, the journal of the Chartered Institute of Trade Mark Attorneys (CITMA). For more information on CITMA, please visit citma.org.uk
This case concerns the "Heks'nkaas" spreadable cream-cheese dip produced by spreadable cream-cheese dip produced by Dutch company Levola Hengelo BV. A patent for the method of manufacture was granted in 2007. However, when rival Smilde Foods began producing its "Witte Wievenkaas" cheese product, Levola relied on another area of IP law.
Levola brought a claim for copyright infringement before the Gelderland District Court in the Netherlands, alleging that the production and sale of Smilde's product infringed its copyright in the "taste" of Heks'nkaas. It asked the Court to rule that the taste was its manufacturer's own intellectual creation and therefore eligible for copyright protection as a "work", and that the taste of Smilde's product was a reproduction of that work.
Is taste protectable?
The Court held that it was not necessary to rule on the question of whether the taste of Levola's product was protectable under copyright law, as Levola hadn't indicated the elements that gave its product its unique character. Levola appealed to the Regional Board of Appeal, arguing that taste may be classified as a "work" of literature, science or art eligible for copyright protection. It referred to the 2006 judgment of the Supreme Court of the Netherlands in Lancôme, which accepted the possibility of copyright arising in accepted the possibility of copyright arising in a perfume scent.[i]The Regional Court noted that there was divergence between national supreme courts in the EU on the related issue of whether scent may be protected by copyright, and made a reference to the CJEU for a preliminary ruling.
Two questions were referred, although the CJEU found it necessary to answer only the first. This asked whether Directive 2001/29/EC (the Directive) precluded the taste of a food product from being protected by copyright and whether it precluded...