Levola Henegelo BV vs Smilde Food BV
Recently the Court of Justice of the European Union ruled that ‘taste’ cannot qualify for copyright protection as it is not deemed as ‘work’.
Levola Hengelo BV (“Levola”) a Dutch company, manufactured a garlic and herb cream cheese called ‘Heks'nkaas’ which was created in 2007. Smilde Foods BV (“Smilde”), a competitor, also manufactured a similar cream cheese in 2014 which encompassed similar flavours to the cream cheese manufactured by Levola.
Levola argued that Smilde’s cream cheese was too similar to Heks'nkaas. As a result, Levola claimed that Smilde had infringed its copyright in the taste of Heks'nkaas and Levola believed that Heks'nkaas qualified for copyright protection as Smilde’s cream cheese was a remake of Heks'nkaas. In order to do this, Levola had to argue that ‘taste’ of an edible product should be considered as ‘work’ (as currently, it was not). Levola relied on Lancome v Kefoca to be considered in the judgement, in this case the Court of Appeal held that ‘smell’ could qualify for copyright protection.
Under the EU Directive, for ‘taste’ to be considered for copyright protection, they had to establish whether or not ‘taste’ could be categorised as ‘work’. Two elements had to be satisfied in order to show this. These are as follows:
1) that the subject matter concerned is an original intellectual creation; and
2) there must be an ‘expression’ of that original intellectual creation.
The courts found it difficult to pin point the ‘taste’ of Heks'nkaas and objectify the concept of taste generally. Taste of a food product was difficult to define and categorise as the courts acknowledged that the taste of the food product essentially relied on taste sensations that were subjective to each individual. Also, the courts concluded that there was no scientific way which could objectively identify the ‘taste’ of food, so it would be difficult to establish how ‘tastes’ would be distinguished if it was to be classified as ‘work’. On that basis, the court could not classify ‘taste’ as work, unfortunately for Levola, Heks'nkaas could not qualify for copyright protection.
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This article was prepared by Savanita Atwal.