Dispute Resolution

The European Court of Justice appears to have looked to trade mark law to answer the question; can taste be protected by copyright?

The question was asked by the Netherlands Court of Appeal. The underlying case related to ‘Heksenkaas’ which is a spreadable dip containing cream cheese and fresh herbs. The owner of Heksenkaas considered that a rival product ‘Witte Wievenkaas’ infringed the copyright in the taste of its cheese. We looked at the Advocate General’s opinion on this case here. The Court of Justice’s decision can be found here.

Copyright protects original literary, dramatic, musical and artistic works. At first glance taste does not fit within any of the categories. However, the producer of Heksenkaas argued that the work could be classified as a “work of literature, science or art that is eligible for copyright protection”. It also pointed out that the Supreme Court in the Netherlands had accepted in principle that there could perhaps be copyright protection in the scent of a perfume – although the Dutch Supreme Court was far from definitive on the point and, in any event, its view is not binding on the Court of Justice.

In response, it was argued that the protection of taste does not fit within the copyright system which only relates to original visual or auditory creations. Also, taste is subjective which makes it very difficult to determine the extent of protection and whether it has been copied.

The Court had to decide what amounted to a “work” protectable by copyright. The court explained that copyright can only protect expressions of ideas and not mere ideas or concepts. In deciding what amounted to an expression the Court found that the subject matter must be expressed in way that makes it identifiable with sufficient precision and objectivity.

The Court decided that taste could not be identified with precision and objectivity and so could not be protected by copyright. Taste cannot be identified easily as it depends on the attributes of the person tasting the product, their personal preference and the “environment or context in which the product is consumed”.

What does this mean?

In answering the question posed by the Dutch Court of Appeal, the Court of Justice has been forced to look beyond the law of copyright. The decision appears to transplant the precision and subjectivity test from trade mark law into the law of copyright – although the Court has not specifically admitted this.

The Court noted there is no scientific or technical means to define the taste of a product or to determine if one product tastes the same as another. This successfully avoids the somewhat bizarre situation of a judge being asked to taste two products and decide if the products taste the same – perhaps with appropriate accompaniments or an appropriate matched glass of wine?!

The decision will be widely welcomed by potential competitors worried that their product is similar to an existing product and avoids the established producers threatening court action on the basis that their products taste similar.

Recipes for products such as coca cola, Irn Bru or Kirspy Kreme donuts are all protected from unlawful copying and disclosure by the law of trade secrets. These companies carefully and diligently protect their secret recipes to avoid competitors making a product to the same recipe. This is done in part by keeping the people who know the recipe to an absolute minimum to minimise the risk of the recipe being handed to a competitor. They also successfully educate their employees about the secret nature of a recipe and the potential consequences if they were to leak that recipe to a competitor.

However, this does not stop a competitor trying to reverse engineer the recipe to obtain a similar result and we are all very familiar with the supermarket own branded look-a-like products on shelves . It is understandable why the producer of Heksenkaas sought to widen copyright law to take account of similar tasting products. However, given the subjective nature of taste, this decision must be correct. As a result food producers will have to continue to use the law of trade secrets for recipes, trade marks and passing off for brand names and look-a-like products, design rights or copyright for similar packaging or shapes or patent law to protect their manufacturing processes.

Andrew McWhirter