Briefly Noted

Abstract

On November 13, 2018, the Court of Justice of the European Union ruled in Levola Hengelo BV v. Smilde Foods BV that the taste of food cannot be classified as a “work” as referred to in Directive 2001/29/EC of the European Parliament in order to be eligible for copyright protection. The case concerns Dutch food retailer Levola, which brought suit against a rival company, Smilde, when they began making a spreadable cream cheese dip with fresh herbs similar to their own and argued that Smilde infringed its copyright in the taste of the dip because the rival dip is a reproduction of their work. The Court noted that to be protected by copyright, the taste must be able to be classified as a “work,” which requires that the subject matter is an original intellectual creation and that there be an “expression” of the intellectual creation. The Court stated that “copyright protection may be granted to expressions, but not to ideas, procedures, methods of operation or mathematical concepts as such,” and that “the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity.” The Court held that taste cannot be identified with precision and objectivity and “will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable,” and so the taste of a food product cannot be classified as a “work” and is consequently not eligible for copyright protection under the Directive.