TASTE IS NOT AUTHOR'S RIGHT
By Yaiza Bascón:
The Court of Appeal of Arnhem-Leuvarda, Netherlands (Gerechtshof-Leeuwarden) suggested the Court of Justice of the European Union a prejudicial question whereby it asked if the taste of food could be protected in accordance with the Directive about author rights.
The facts that resulted in this prejudicial question were the following:
In 2007, a Dutch merchant of vegetables and fresh products created the «Heksenkaa», a type of cheese spread made of fresh cream and fine herbs. So, in 2001, the creator of the product gave his intellectual property rights over the cheese to the Dutch society of Levola Hengelo BV.
From January 2014, another Dutch society called Smilde Foods BV started to elaborate «Witte Wievenkaas» for a supermarket chain of Netherlands.
This way, Levola considered that the production and sale of «Witte Wievenkaas» violated their author rights over the taste of «Heksenkaa» and asked the Dutch courts to instruct Smilde to stop production and sale of this product.
Given these facts, the Dutch Court that knew about the issue in the second instance, decided to ask the Court of Justice of the European Union if taste could be protected by the author rights according to the Directive 2001/29/CE.
In its judgement, issued the 13th of November 2018, the Court of Justice reminds that to obtain protection for author’s rights, the taste of food should be deemed as a work, so that it has to have an intellectually original creation that can be expressed in a precise and objective way.
Therefore, the concept «work» as in the Directive necessarily requires “an expression of the object that identifies it with enough precision and objectivity, even though this expression is not necessarily permanent”, not being possible to identify in a clear and precise way the taste of food.
Taking into account all mentioned before, the Court of Justice of the European Union stated that the taste of food cannot be deemed as «work» and, consequently, it does not count on author rights according to the Directive 2001/29/CE.
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