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On copyright without flavour

When you sit in a restaurant, you’re surrounded by copyright protected works: the art on the walls, the restaurant’s logo on the menu and in some cases even the dining tables and chairs. But what’s the situation with copyright protection of the most important thing in that restaurant – the flavour of the food and drink? This question has led to a lot of scratching of heads in IP land recently. The EU Court of Justice made its pronouncement on the matter on 13 November: flavour is not protected by copyright. The ruling shows once again that the copyright “work” concept is harmonised across Europe.

What was the case about? Levola, the manufacturer of Heks’nkaas [Witches’ cheese], charged the manufacturer of Witte Wievenkaas [White Women’s cheese] with a breach of its copyright on the flavour of Heks’nkaas. This was an unusual claim: it was entirely unclear whether copyright could be imposed on the flavour of a food. The District Court of Gelderland dismissed the claim, while leaving the key matter of principle unanswered. The Court of Appeal of Arnhem-Leeuwarden asked the European Court of Justice some questions of interpretation.

The European Court of Justice stated clearly that a copyright “work” must be identifiable with sufficient accuracy and objectivity. In other words, the work must be perceived clearly in the same way by those who had to issue any findings on copyright protection (judges), competitors and consumers. Because the experience and perception of flavours was subjective and to some extent arbitrary – there are good reasons for saying that “tastes differ” – they cannot be subject to copyright.

So, are differences in flavour now banned from the courts altogether? Probably not. Ads often contain flavour comparisons. Do you still remember the “Tasty too” campaign by Lidl?

Mathijs Peijnenburg, paralegal

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