May the Taste of Food be Eligible for Copyright Protection?

In Levola Hengelo BV v. Smilde Food BV (Case C-310/17), the Court of Justice of the European Union (CJEU) recently held that the taste of food is not eligible for copyright protection...

May the Taste of Food be Eligible for Copyright Protection?

May the Taste of Food be Eligible for Copyright Protection?

<strong>In <em>Levola Hengelo BV v. Smilde Food BV</em> (Case C-310/17), the Court of Justice of the European Union (CJEU) recently held that the taste of food is not eligible for copyright protection.</strong>..


While copyright protection has traditionally been limited to creative expressions of artistic and literary nature, such as novels, paintings, and musical compositions, courts are increasingly being asked to expand the boundaries. In Levola Hengelo BV v. Smilde Food BV (Case C-310/17), the Court of Justice of the European Union (CJEU) recently held that the taste of food is not eligible for copyright protection. According to the EU’s highest court, because taste is “an idea,” rather than an “expression of an original intellectual creation,” it can’t be defined with enough precision to be protected under copyright law.

Battle of the Cheeses

Heksenkaas or Heks’nkaas (Heksenkaas) is a spreadable dip containing cream cheese and fresh herbs, which was created by a Dutch retailer of vegetables and fresh produce in 2007. In 2011, its creator transferred his intellectual property rights over that product to Levola Hengelo BV (Levola). A patent for the method of manufacturing Heksenkaas was granted in 2012.

Since January 2014, Smilde Food BV (Smilde) has been manufacturing a product called “Witte Wievenkaas” for a supermarket chain in the Netherlands. Levola alleged that the production and sale of Witte Wievenkaas infringed its copyright in the “taste” of Heksenkaas and brought proceedings against Smilde before the Netherlands’ Gelderland District Court.

According to Levola’s suit, copyright in a taste refers to the “overall impression on the sense of taste caused by the consumption of a food product, including the sensation in the mouth perceived through the sense of touch.” Levola asked the court to rule (i) that the taste of Heksenkaas is its manufacturer’s own intellectual creation and is therefore eligible for copyright protection as a work, within the meaning of Article 1 of the Copyright Law, and (ii) that the taste of the product manufactured by Smilde is a reproduction of that work. It also asked that court to issue a cease and desist order against Smilde for infringement of its copyright and, in particular, in relation to the production, purchase, sale, supply or other trade in the product known as “Witte Wievenkaas.”

The Gelderland District Court held that it was not necessary to rule on whether the taste of Heksenkaas was protectable under copyright law, given that Levola’s claims had to be rejected since it had not indicated which elements or combination of elements, of the taste of Heksenkaas gave it its unique, original character and personal stamp. On appeal, the Arnhem-Leeuwarden Court of Appeal stayed the proceedings and referred the question of whether the taste of a food product may be eligible for copyright protection to the CJEU for a preliminary ruling.

In urging the CJEU to find that its cheese was entitled to copyright protection, Levola argued that the taste of a food product may be classified as a work of science or art that is eligible for copyright protection. Levola relied by analogy on a decision by the Supreme Court of the Netherlands, in which that court accepted in principle the possibility of recognizing copyright in the scent of a perfume.

In response, Smilde maintained that the protection of tastes is not consistent with the copyright system, as the latter is intended purely for visual and auditory creations. It also argued that the instability of a food product, and the subjective nature of the taste experience, preclude the taste of a food product from qualifying for copyright protection.

Court Rules Taste of Food Is Ineligible for Copyright Protection

The CJEU held that EU law precludes the taste of a food product being granted copyright protection. In reaching its decision, the court explained that in order to qualify for copyright protection, the taste of a food product must be capable of being classified as a "work," which requires both "an original intellectual creation" and an "expression" of that creation. Additionally, a work must be expressed in a manner that makes it identifiable with sufficient precision and objectivity.

The CJEU concluded that because the taste of food can’t be "pinned down with precision and objectivity,” it failed to satisfy the above criteria. "Unlike, for example, a literary, pictorial, cinematographic or musical work, which is a precise and objective form of expression, the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable since they depend 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," the CJEU explained.

The CJEU further noted that it would be difficult for a competitor to determine whether its product was infringing. "Moreover, it is not possible in the current state of scientific development 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," the court wrote.

What About Copyrighting Taste in the United States?

U.S. courts have not yet addressed whether a taste is entitled to copyright protection. However, U.S. copyright law similarly excludes copyright protection for “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied.”

The U.S. Copyright Office does provide guidance on the registration of other food-related expressions. “Copyright law does not protect recipes that are mere listings of ingredients. Nor does it protect other mere listings of ingredients such as those found in formulas, compounds, or prescriptions,” Circular 33 states. “Copyright protection may, however, extend to substantial literary expression—a description, explanation, or illustration, for example—that accompanies a recipe or formula or to a combination of recipes, as in a cookbook.”

It is also worthwhile to note that while there have been attempts to register flavor and taste trademarks with the U.S. Patent and Trademark Office, none have been successful to date. According to the Trademark Manual of Examining Procedure (“TMEP”), “the Board has observed that it is unclear how a flavor could function as a source indicator because flavor or taste generally performs a utilitarian function and consumers generally have no access to a product’s flavor or taste prior to purchase.”  However, the TMEP leaves open the door for future such applications, in cases where applicants for a trademark in flavor can make “a substantial showing of acquired distinctiveness.” (TMEP 12.02.13).

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact us: David Einhorn, Pat McNamara, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.

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About Author David A. Einhorn

David A. Einhorn

David Einhorn, Chair of the firm’s Technology Law practice group, handles diverse matters in intellectual property and technology areas. He has obtained successes in many prominent and precedent-setting cases in the fields of patent infringement, trademark infringement, copyright infringement, cybersquatting, trade name misappropriation and insurance coverage.

About Author Patrick J. McNamara

Patrick J. McNamara

Patrick J. McNamara has extensive experience in environmental, redevelopment and land use law and related litigation. His activities include the representation of developers and public entities in preparation of and presentations before land use boards, redevelopment agencies, as well as county, regional and state agencies.

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