13/11/18
A popular cheese spread in Holland is called Heksenkaas (Witches’ cheese) made from cream cheese, garlic and leeks. In January 2014 Smild created a taste-alike product called Witte Wievenkaas which is sold in Aldi supermarkets. Levola Hengelo BV, the makers of Heksenkaas, took action against the Witte Wievenkaas product in the Dutch courts and argued, among other things, that the taste of their product was protected by copyright. At trial a number of experts on the taste of foods gave evidence on the similarities and differences between the two products.
The issue of whether copyright extends to tastes and smells has been a subject of considerable academic debate and has resulted in conflicting decisions of the French and Dutch Supreme Courts. It also raises fundamental questions about the extent of harmonisation under the Copyright Directive including whether or not the concept of a ‘work’ which is fundamental to copyright has been harmonised, and whether the approach of countries such as the UK, Ireland and Austria which adopt a so-called ‘closed list’ of types of works that qualify for copyright protection is correct.
The Gerechtshof Arnhem-Leeuwarden (Court of Appeal of Arnhem) referred a series of questions to the Court of Justice in relation to the copyright directive which asked whether EU law precluded tastes being protected as copyright works and whether the potential instability or subjective nature of taste was something that was relevant.
The case was assigned to the Grand Chamber of the Court and Advocate General Wathelet. The Court (Judges Lenaerts, Silva de Lapuerta, Bonichot, Arabadjiev, Vilaras, Regan, von Danwitz, Toader, Rosas, Juhász, Ilešič, Safjan, Fernlund, Vajda and Rodin) held earlier today that for there to be a copyright work capable of protection, the subject matter protected by the copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity. Tastes (and presumably smells) do not meet that test.
Unfortunately the court does not go on to express a view on Brecht’s dilemma about what happens to the hole when the cheese is gone.
The Court press release is here.
The judgment is here.
Press coverage in the Telegraph is here.
Nicholas Saunders QC appeared for the United Kingdom instructed by the Cabinet Office.
