Dutch Court Seeks Guidance from Court of Justice of European Union regarding Copyright Protection of Taste
- 25/05/2017
- Articles
On 23 May 2017, the Arnhem-Leeuwarden Court of Appeal referred questions for a preliminary ruling to the Court of Justice of the European Union (the “ECJ”) relating to the extent to which a specific taste may qualify for protection under copyright law.
The dispute involves, on the one hand, Levola Hengelo BV (“Levola”), the parent company of a group producing and marketing fresh foodstuffs and, on the other hand, Smilde Food BV (“Smilde”) which produces food products under its own trademark and under private labels and supplies these products to supermarkets such as Aldi and Lidl.
Levola had purchased all rights related to a popular cream cheese named “Heksenkaas” and had put this product on the market in 2012. In January 2014, Smilde started the production and sale of a similar product, “Witte Wievenkaas”. Convinced that these practices infringed its copyright in the taste of “Heksenkaas”, Levola brought an action against Smilde for copyright infringement.
The first court held that it was unable to assess whether the taste of the product is covered by copyright and, therefore, dismissed the action on 10 June 2015. It held that it was not for the judge to taste and try to describe the savour of a product and that Levola had not put forward any elements capable of proving the original character and personal imprint of its product’s taste. Levola appealed from this judgment.
The Arnhem-Leeuwarden Court of Appeal decided to stay the proceedings and referred questions for a preliminary ruling to the ECJ asking, in essence (i) whether the taste of a product – as its author’s own intellectual creation – qualifies for copyright protection; and (ii) whether the intrinsic instability of taste can interfere with such protection. If the ECJ were to answer positively to the first question, the Court of Appeal enquired (i) which requirements should the taste of a product satisfy to be covered by copyright; and (ii) whether the protection would apply to the taste as such or rather to the recipe of the product. The Court of Appeal also sought guidance as to how a court should assess the taste of a product in practice and, likewise, which elements an applicant should put forward when seeking protection.