The taste of cheese is not a work of art. This way (more or less) has responded to the preliminary ruling referred to it by the Rechtbank Gelderland (Court of First Instance of Gelderland, Netherlands), in which the High Court was asked to rule on on the scope of the concept of work contained in the Directive 2001/29/EC of the European Parliament and of the Council of May 22, 2001, and the possibility of including smells within the category of works protected by intellectual property.
The origin of such a question stems from a dispute between two cheese traders: the Dutch companies Levola Hengolo BV (plaintiff) and Smilde Foods BV (defendant).
Levola is a well-known producer of “Heksenkaas,” a spreadable cheese made from fresh cream and fine herbs, created by a Dutch vegetable and fresh produce merchant in 2007, whose intellectual property rights were transferred in 2011, under an exclusive assignment agreement, to the current plaintiff. For its part, the company Smilde produces and sells a spreadable cheese marketed under the name “Witte Wievenkaas.” Levola considered that the competing cheese infringed its copyright on the flavor of “Heksenkaas” and filed a lawsuit against the alleged infringer, arguing that Your product is an intellectual creation of its manufacturer, who is responsible for its authorship and ownership. work (read, on the specific flavor of “Hekenskaas”) and, therefore, “Witte Wievenkaas” constitutes an unlawful reproduction of your creation.
The CJEU, as we anticipated, has ruled in favor of the defendant, denying copyright to the taste of cheese because I understand that “The instability of food and the subjective nature of taste perception prevent the flavor of food from being considered a work protected by copyright.”.
As we have mentioned on several occasions (for example, here speaking of television formats, or here analyzing photographic works), for a creation to be classified as a work within the meaning of Directive 2001/29 (and, by transposition thereof, of our Intellectual Property Law) two requirements must be met (established at European level in the latest version of the Berne Convention for the Protection of Literary and Artistic Works on September 28, 1979): let it be original, in the sense of constituting an intellectual creation of its author; and that be expressed, in any manner or form, that is, there must be a physical object that can be protected, since it is not possible to protect something that only exists in the world of ideas (which cannot be protected under European intellectual property rights legislation). Thus, books, paintings, films, and all other such items are considered works. creations capable of physical, objective, and accurate representation.
In this case, as the Court points out, “there is no possibility of accurately and objectively identifying the flavor of a food (…) flavor identification of a food is essentially based on sensations and taste experiences, which are subjective and variable, since they depend, in particular, on factors related to the person tasting the product in question, such as their age, food preferences, and consumption habits, and on the environment or context in which the product is tasted.”.
Therefore, since it is not possible to provide an objective description of the taste of cheese, or of any other product, without including evaluative elements, the Court can only conclude that a smell is not a work within the meaning of the Directive and, therefore, as we have been saying, The taste of food cannot be protected by copyright..
This reasoning by the CJEU may seem familiar, as it is essentially a reproduction of the arguments put forward by the High Court in the well-known “Sieckmann” ruling”, of December 12, 2002, which also resolved a preliminary ruling, raised on this occasion regarding a national application for a olfactory brand (a topic we discussed) here in relation to the smell of Hasbro's plasticine). At the time of the ruling, in order for a national or European trademark to be eligible for registration, it had to meet two basic conditions: it had to bear distinctive character optimal for differentiating the products and/or services marketed with them, which is the essential function of distinctive signs; and be capable of graphical representation, in a way that“complete in itself, easily accessible, understandable, durable, and objective”, added the Court. That being the case, at that time, it was understood that accompanying the application for registration of the trademark with a chemical formula and a description of the scent to be registered (“balsamic-fruity with slight hints of cinnamon”) did not meet the requirements for graphic representation and, therefore, the olfactory mark could not be registered. Despite the fact that the Regulation 2017/1001 has made access to the European trademark register relatively more flexible and no longer imposes the requirement of graphic representation, olfactory trademarks continue to present the same problem today, as we explained in this post.
Intellectual property has traditionally been a kind of special property covering so-called creations of the mind, such as literary or musical works, which reflect the personality of their author, differing from the field of application of industrial property, which is more commercial or business-oriented. The romantic nature, if I may say so, of intellectual property is not designed, at least in its origins, to satisfy the demands of consumer society; but neither is it plausible from a practical point of view: how can the owner (if there were one) of the intellectual property rights to a flavor or a smell, for example, prevent its public communication? Would consumers have to sign a contract assigning rights in order to eat the cheese/work? Would supermarkets infringe the right to public display of the work/cheese?
However, it seems that times of change are coming, led by French cosmetics company Lancôme and its perfume “Trésor” (it appears that the scent of this perfume could meet the criteria for protection under Dutch copyright law, according to the Dutch Supreme Court). We will have to keep an eye on future litigation and the corresponding court rulings, as this crusade has undoubtedly only just begun.
[Article written by Patricia Fernández Céspedes]
