Taste of cheese cannot be copyrighted, but perfume can be, say EU courts

The taste of a food cannot be protected by copyright, the EU's highest legal authority has ruled in a case last week involving a Dutch cheese brand. The European Court of Justice said that the taste of food was too "subjective and variable" for it to meet the requirements for copyright protection. Interestingly, the petitioners referred to a case in the year 2000 wherein the courts decreed that ‘scent’ was copyrightable. But it now transpires that while sensory perceptions are protectable, the taste buds are not seen by the courts to be as reliable. 

A Dutch cheese company tried earlier this year in the Netherlands courts to claim that it had a monopoly on the taste of a cheese spread. The matter was pushed up to The Court of Justice of the European Union which weighed arguments from the two competing food producers, and decided last week that a ‘taste’ cannot be copyrighted. Taste, the court ruled, is “an idea”, rather than an “expression of an original intellectual creation”. And therefore something that cannot be defined “precisely”, hence cannot be copyrighted. 

Levola Hengelo, a Dutch food producer, had earlier this year sued Smilde Foods, another Dutch manufacturer, for infringing its copyright over the taste of a cheese spread. The Levola product, known as Heks’nkaas, or Witches Cheese, is made of cream cheese and herbs and vegetables including parsley, leek and garlic. Smilde’s herbed cheese dip, which contained many of the same ingredients, was called Witte Wievenkaas, a name that also makes reference to witches. One part of the suit centered around the witches and the claim being laid upon them by the respondents. On that part, Levola got relief. Witte Wievenkaas is now sold as Wilde Wietze Dip. 

But Levola’s bigger argument in court was that the taste of food, like literary, scientific or artistic works, can be copyrighted. It felt that its cheese had a unique taste which was being infringed upon by its rival, and its copyright on the taste needed to be protected. The Netherlands courts decided that this matter of intellectual property interpretation needed the wisdom of a higher court. The matter was referred to The Court of Justice of the European Union. Levola, in its submission before the higher court cited a 2006 case involving Lancôme, the cosmetics company, that had accepted in principle that the scent of a perfume could be eligible for copyright protection. 

Smilde responded in court that taste is subjective — and that makes it ineligible for copyright. Levola hired a culinary expert and presented him in court to help its case but failed to persuade the European court. Tobias Cohen Jehoram, the lawyer for Smilde explained his client’s stand in court saying, “Even an expert had to admit it’s really difficult to describe what a taste is”. “Our argument before the Hon’ble Court was that if you can’t describe what your monopoly is, you have not sufficiently stated your claim.”

While the judgment on the cheese front is a landmark in itself, it would be prudent to pause here and refer to the Lancôme case referred to above because the issues involved in establishing the copyright are fairly similar. It is well-known that Lancôme manufactures and sells perfume and eau de toilette containing the Trésor scent under the trademark TRÉSOR worldwide. Another company, Kecofa, had been selling eau de toilette in the Benelux under the trademark FEMALE TREASURE since 1993. In 1994 Lancôme initiated proceedings against Kecofa before the Amsterdam District Court, alleging that Kecofa infringed Lancôme's TRÉSOR trademark by using the trademark FEMALE TREASURE. The court rejected the claims; the judgment was upheld by the Amsterdam Court of Appeal in 1997. In 2000 Lancôme re-initiated proceedings against Kecofa before the Maastricht District Court. This time Lancôme claimed that the perfume sold by Kecofa under the name 'Female Treasure' infringed Lancôme's copyright in the Trésor scent. In an interlocutory judgment dated April 18 2002 the district court ordered Lancôme to demonstrate that the combination of scents offered under the TRÉSOR trademark met the requirements for copyright protection - in particular, that it had an original character that bore the stamp of the author. Lancôme appealed the decision to the Hertogenbosch Court of Appeal. The matter eventually ended up in The Supreme Court of the Netherlands which held that the scent was protectable by copyright, as it:
 

• could be recognised by sensory perception;

• possessed an original character; and 

• bore the personal stamp of the author.

The court considered that a scent cannot be identified with the substance or substances which create the scent. These substances 'embody' the copyrighted work and contribute to its protection by ensuring that the scent is not excluded from copyright protection as being volatile or unstable. In order to substantiate its claim that the Trésor perfume had an original character and bore the personal stamp of the author, Lancôme asserted (among other things) that Trésor resulted from a particularly creative development path. From hundreds of olfactory elements, the perfume maker selected certain elements which:

• resulted in a very specific combination of, among other things, the fragrance of fresh white roses and lilies of the valley, boosted by the powdery fragrance of iris, apricot, blossom and heliotrope, with a background of storax, sandal and musk; 

• resulted from the fact that Lancôme sought to make a distinctive and unique perfume; and

• were instantly popular because of the distinctive scent of Trésor.

The Supreme Court concluded that the Trésor perfume met the requirements for copyright protection to a sufficient degree. The Supreme Court accordingly held that the Female Treasure scent infringed the copyright in Trésor. 

Back to the taste-of-cheese case, the courts did not indulge in any cheese tasting. But they concurred with Smilde that the taste of the cheese “could not be defined with enough precision and objectivity to make it clear to other companies where they might be overstepping the mark”. The decision of The Supreme Court was unambiguous in stating that, “Unlike, for example, a literary, pictorial, cinematographic or musical work, which is a precise and objective expression, the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable”. 

Heks’nkaas, which is now a separate company from Levola, sells about 2,000 tons of the spread a year. The claim in the courts was that the uniqueness of Heks’nkaas is attributable to a combination of freshness, sweetness and fat. “It’s not a cream cheese, it’s not a salad, it’s not a sauce, it’s a little bit in between those concepts,” the company had submitted in court. But it also admitted that it was difficult to pinpoint the “taste”. And that is where it lost the plot. Rival lawyers won the day by proving in court that something that you taste with your tongue is subjective and open to personal biases and subjectivity. 

So, in a manner of speaking, the courts have decreed that there is a discrimination between the senses. Smell qualifies. Taste does not. Effectively what the courts are now telling food companies is that for anyone who wants to protect taste, smell, touch, those sorts of sensory perceptions of a product, copyrighting is almost off the table.
 

To win a copyright case, companies need to find a way to ‘objectively’ convey the ‘taste’ of their products. The ‘description’ of ‘taste’ will become critical to copyright filings in the future. Such descriptions will have to be detailed, and defendable for uniqueness. Otherwise the courts may find copyright applications for taste of food difficult to digest. Food companies still have the option of copyrighting their production process and their ‘secret sauce’ ingredients but the filing of a copyright means disclosing what constitutes that ‘secret sauce’ which in itself contradicts the very purpose of establishing a copyright.  

This is obviously not the last we have heard on the subject. The European Court of Justice seems constantly engaged in deciding on matters related to food and drinks. In July 2018, it decided that Nestle’s Kit Kat did not merit protected status, dealing a major blow to the company’s lengthy legal battle to trademark the four-finger chocolate bar. In June 2017, it ruled that plant-based foods such as tofu cannot be branded with dairy-style terms. In December 2017, it ruled against a Champagne lobbying group, which was trying to say that a German discount store could label its product as Champagner Sorbet because it contained 12% champagne.  

In India, we still have a long way to go on protection (in fact in the definition itself) of intellectual property rights. Many of the current cases are more to do with GI tagging, less to do with protection of either taste or proprietary production processes. But the battles will come here too. It is only a matter of time. 

Dr Sandeep Goyal has been involved with IP related to food since the 1990s. His daughter, Carol Goyal, is a lawyer with special interest in intellectual property and writes extensively on the subject.