Smilde, a Dutch company that produces Witte Wievenkaas spreadable cheese, was recently in the dock for copyright infringement. Its product, according to the compatriot company Levola, was too similar to Heksenkaas, a specialty cheese made from cream and herbs for which the latter holds intellectual property rights. The two cheeses have practically the same ingredients, follow the same recipe and present themselves to the palate with a very close, if not identical, taste. Just enough, according to the management of Levola, to make an allegation of plagiarism and ask for the withdrawal of the competitor reference from the market. After a long trial, the court of appeal of Arnhem-Leeuwarden referred all decisions to the Court of Justice of the European Union. The crux of the question has become whether or not food flavors can benefit from protection under the Copyright Directive. And the Court answered: “No”.
COPYRIGHT: THE COURT’S OPINION
Disappointing the expectations of those who want greater protection from food imitations, the judges established that “to be protected by copyright, the taste of a food must be able to be qualified as artwork”. Therefore, it should “be identifiable with sufficient precision and objectivity”. For the Court, however, this assumption is almost impossible when it comes to food.
FLAVOR AND TASTE ARE NOT ARTWORK
In short, as the taste of a food comes from subjective feelings and experiences it cannot be considered an objective expression. Consequently, there would also be no elements to distinguish it from the taste of other products of the same kind, as opposed to what happens with a song, a painting, or a movie picture.
A DISPUTED DECISION
The Court also established which criteria a food product should meet in order to benefit from copyright. Therefore, it must be an original intellectual creation and, precisely, have characteristics such as to allow its clear identification. It is probably too much to protect authentic food from ‘imitations’.
