Levola Hengelo BV v Smilde Foods BV (Case C-310/17) Court of Justice of the European Union, 13 November 2018

The Court of Justice of the European Union (CJEU) held that the taste of a food product is not protected by copyright under Copyright Directive because it cannot be construed as ‘work’ within the meaning of the directive, for the variable and subjective aspects of individual perception of it and the lack of contemporary technical means to distinguish it from the taste of other products of the same kind preclude its precise and objective determination.

The case essentially provides insights into what constitutes ‘work’ within the meaning of EU copyright law, exploring further into characterisation of expression of author’s own intellectual creation.

Though, in principle, expression of protected subject matter should warrant its identification, precisely and objectively, the referral merits further academic and judicial debate because at its focal point lie two inherently distinct, and possibly opposing, reasonings pertaining to the subjective nature of identification of taste of a food product in determining whether the same can be referred to as concept of ‘work’ under Directive 2001/29.

The Dutch creator of ‘Heksenkass’, a spreadable dip containing cream cheese and fresh herbs created in 2007, transferred his intellectual property rights over it to a Dutch company Levola in 2011.

Levola claims copyright in the taste of Heksenkaas that subsists in the ‘overall impression on the sense of on the sense of taste caused by the consumption of a food product, including the sensation in the mouth perceived through the sense of touch’.

It alleged, before the Gelderland District Court, Netherlands, that Smilde, another Dutch company, was infringing copyright by manufacturing and selling ‘Witte Wievenkaas’ since 2014 for a supermarket chain in the Netherlands.

The district court finding it unnecessary to rule on whether the taste of Heksenkaas was protectable under copyright law rejected  Levola’s claims because it had failed to indicate which elements or combination thereof of the taste of Heksenkaas gave it ‘its unique, original character and personal stamp’.

The Regional Court of Appeal, Arnhem-Leeuwarden, Netherlands, upon Levola’s appeal, articulated the key issue as whether the taste of a food product -as the author’s own intellectual creation- may be eligible for copyright protection under EU law.

Levola argues for classification of taste of a food product as work qualifying for copyright protection while relying on the case where court accepted in principle the possibility of recognizing copyright in scent of a perfume (Lancôme NL:HR:2006:AU8940 Supreme Court of the Netherlands, 16 June 2006).

Smilde counters highlighting the inconsistency of tastes with the copyright system meant only for visual and auditory creations. It seeks to exclude taste from copyright protection as a work because of its subjective nature.

The referral court noticed different approaches followed by national supreme courts of the EU with regard to whether a scent could be protected by copyright and referred the following questions to the CJEU:

“(1)      (a)      Does EU law preclude the taste of a food product — as the author’s own intellectual creation — being granted copyright protection? In particular: 

(b)      Is copyright protection precluded by the fact that the expression “literary and artistic works” in Article 2(1) of the Berne Convention, which is binding on all the Member States of the European Union, includes “every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression”, but that the examples cited in that provision relate only to creations which can be perceived by sight and/or by hearing?

(c)      Does the (possible) instability of a food product and/or the subjective nature of the taste experience preclude the taste of a food product being eligible for copyright protection?

(d)      Does the system of exclusive rights and limitations, as governed by Articles 2 to 5 of Directive [2001/29], preclude the copyright protection of the taste of a food product?

(2)      If the answer to question 1(a) is in the negative:

(a)      What are the requirements for the copyright protection of the taste of a food product?

(b)      Is the copyright protection of a taste based solely on the taste as such or (also) on the recipe of the food product?

(c)      What evidence should a party who, in infringement proceedings, claims to have created a copyright-protected taste of a food product, put forward? Is it sufficient for that party to present the food product involved in the proceedings to the court so that the court, by tasting and smelling, can form its own opinion as to whether the taste of the food product meets the requirements for copyright protection? Or should the applicant (also) provide a description of the creative choices involved in the taste composition and/or the recipe on the basis of which the taste can be considered to be the author’s own intellectual creation?

(d)      How should the court in infringement proceedings determine whether the taste of the defendant’s food product corresponds to such an extent with the taste of the applicant’s food product that it constitutes an infringement of copyright? Is a determining factor here that the overall impressions of the two tastes are the same?’

The CJEU, after dealing with admissibility issue raised by Smilde, went on to discuss whether the taste of a food product is precluded from copyright protection under Directive 2001/29.

Referring to Articles 2 to 4 of the directive requiring Member States to afford certain exclusive rights in relation to ‘works’ of authors, observing no express reference to the laws of the Member States as to what constitutes ‘work’ and relying on Infopaq International, C‑5/08 and Deckmyn and Vrijheidsfonds, C‑201/13, the CJEU concluded that the taste of a food product can be protected by copyright under the directive only if such a taste can be classified as a ‘work’ within the meaning of the directive.

According to the CJEU, there are two cumulative conditions that a subject matter must qualify in order to be classified as ‘work’ within the meaning of the directive.

First, it should be original in the sense that it is the intellectual creation of the author; and, secondly, per the para 37 of the judgement, “only something which is the expression of the author’s own intellectual creation may be classified as ‘work’ within the meaning of Directive 2001/29”. The CJEU referred to Football Association Premier League and Others (C‑403/08 and C‑429/08, EU:C:2011:631, paragraphs 97 and 159) in support of the  conditions.

In the process of determining attributes of ‘expression’, the CJEU highlighted that according to Article 2(1) of the Berne Conventions, Article 2 of WIPO Copyright Treaty and Article 9(2) of TRIPS, copyright protection may be granted to expressions, but not to ideas, procedures, methods of operation or mathematical concepts as such. 

Therefrom, the CJEU concluded that something can be called ‘work’ within the meaning of Directive 2001/29 only if the subject matter protected by copyright is expressed in a manner that it may be precisely and objectively identified.

The CJEU gives two reasons for this: first, the authorities responsible for protecting the copyrights and individuals, in particular competitors, must be able to clearly and precisely identify the subject matter of protection; and, secondly, there is necessity to keep subjectivity, for it is detrimental to certainty, out of identification of protected subject matter.

Per the CJEU, taste of food product cannot be expressed with precision and objectivity as it is identified primarily on the basis of subjective and variable factors like taste sensations and experiences, depending, among others things, on factors that are highly individualistic and often relate to other externalities like the environment or context in which the product is consumed.

In addition to the aforementioned, importantly, the CJEU expressed the impossibility of using the contemporary technical means for 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.

Essentially, the lack of objectivity and precision in determining taste of food product which is sought be seen as an expression of an idea is the main issue that stops the court from considering it as a ‘work’ in order to qualify for protection under the EU Copyright Directive.

Additionally, the court talks of limitation of contemporary technical means in determining the taste with objectivity and precision as a reason for not considering it as a ‘work’ within the meaning of EU Directive. However, these two are inherently different aspects.

The former pertains to individual perception of taste of food in the context of various externalities whereas the latter is more limited yet objective technical approach that excludes how an individual perceives the taste.

The decision implies the possibility of an alternative approach to the issue if technical means to determine taste would have been more advanced. This aspect in the Opinion of the Advocate General is articulated in a manner that leaves much more to future advancement in the field of technological determination of taste and smell.

Though the decision seems to clarify in a way what sort of expression of idea can be considered ‘work’, it has opened other extremely crucial dimensions for law makers and legal scholars to explore in great details, especially in the context of advancing artificial intelligence.

Prospective litigants might bring forth cases that calls for adjudication on whether what can be referred to as objective and precise expression should depend on the standards of a prudent person or what can be technically narrowed down onto.


Paramjeet holds an LL.M. from MIPLC, a union of Max Planck Institute of Innovation and Competition (Germany) and the George Washington University (USA). He is often invited as AI policy making expert. In addition to being a qualified lawyer with an extensive experience, he is an invited lecturer at several universities.