The taste of food products is not eligible for copyright protection

In the judgment of 13 November 2018 the Court of Justice of the EU was supposed to answer the questions whether the taste of Dutch spreadable dip with cream cheese and fresh herbs can be protected under the directive on the harmonisation of certain aspects of copyright and related acts in information society.

The Court underlined that the taste of a food product could be protected by copyright under this Directive only if such is capable of being classified as a ‘work’.

Classification as a ‘work’ requires, first of all, that the subject matter concerned is an original creation. Secondly, there must be an ‘expression’ of that original intellectual creation.

The CJEU indicated for there to be a “work”, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity.

The taste of a food product cannot be identified with precision and objectivity. Unlike a literary or graphic work, the taste of a food product will be identified on the basis of taste sensations and experiences which are subjective and variable.

What’s also important, 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 stated that the taste of a food product is not a work and is eligible for copyright protection.

• judgment of the CJEU of 13 November 2018, C-310/17, Levola Hengelo BV / Smilde Foods BV