Comments for Should intellectual property, and copyright in particular, apply to tastes and smells?

Introduction

We live in a world with an increasing amount of creation and development. On the one hand, making sure that new ideas are protected has become primordial. On the other hand, a certain limitation of copyright must be imposed. Based upon this, we will argue in favor of the defendant, Smilde. Our defense will consist in demonstrating that the latter has not infringed Levola’s copyright and should be allowed to continue their production of ‘Witte Wievenkaas’. We will take five different themes into account namely the notion of work, originality, the distinction between form and idea, the stability of form of protection and the criteria for copyright infringement.

Notion of work

The first article of the Bern Convention aims to define the notion of “work”, subject matter of the copyright protection that can be granted to a product: ‘every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works […]; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works […]; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science’.

The list is non-exhaustive. However, if we refer to the case law of the CJUE, we can easily distinguish the central criterion upon which the notion of work is built, that links all these totally different artistic or literary creation together. In cases like Infopaq, Painer or Premier league, the court has, in fact, always ruled that a “work” can be considered as such if and only if it is the result of an original intellectual creation.

The issue we face here is that a taste is impossible to apprehend objectively as an original creation. In fact, a particular taste is nothing but the re-composition of a multitude of other elements, which are all subjectively perceived by each and every one. The result of this re-composition is thus in itself submitted to a too great subjectivity to be unanimously perceived as original. But before getting more deeply into the question of originality (infra), we can already illustrate our claim by emphasising on the nuance between the receipt of the product and the taste of it with regard to this criterion of work. A receipt can easily be considered as work as it designates all the aspects that make it an original creation: the choice in the ingredients, the choice in the quantity, the choice in the method of production, etc.; a combination of factors that makes this cheese de facto different from another one. In the opposite, we can hardly understand how could we prohibit the commercialisation of a totally different cheese, original in its receipt, because a producer in competition claims that what he personally perceives as the “original taste” of his work has been copied.

Originality

One of the main substantive conditions for copyright protection is the originality of the work. In casu, the question is whether the taste of Heks’nkaas has met the threshold of original character.

It’s useful to remember that the criterion of originality is unrelated with the aesthetic value of the work. In that sense, originality is something that cannot be analyzed through our personal preferences. In the case Lachaussée of 1989, the Belgian Court of Cassation made clear that originality is not necessarily something related to our subjective approach to the work. Besides, originality is also different from novelty and can be relative. From that perspective, we can argue that a taste cannot fulfill the criterion of originality. In fact, it would be impossible to determine the degree of originality of a taste since flavors are not something objectifiable. We could consider that the recipe is original but not the flavor as it depends on the appreciation of each. Maybe, the producer should have protected its receipt with a patent instead of trying to protect a taste. In fact, it is highly more complicated to meet the conditions of originality with something that cannot be precisely determined. The taste is related with the personal experience of the taster and the tasting can be affected by a lot of external factors. We can point out that the cheese is a food (nutritional) product and therefore, its taste may vary with age, air exposure, temperature and cooking.

The plaintiff could argue that he made a free and creative choice when developing the taste of the cheese but it seems in this case, that the taste depends on extremely common ingredients. One should be a lot more eccentric in his choice of ingredients when claiming copyright protection. In other words, the producer of Heks’nkaas should describe these specific elements sufficiently but here, it seems impossible. It is not up to judges to taste nutritional product for the determination of originality. It would be inappropriate to called some experts to taste the product since, again, there is always a risk of subjectivity because of personal preferences in taste, in scent, etc.

Distinction between form and idea

In copyright law, a distinction is made between artistic work and mere ideas. If we read the article 2, §2 of the Berne convention, we can see that in order to be protected a work has to be « fixed in some material form ». In other words, only the form of expression of ideas are protected, and not the ideas themselves. Therefore to violate a copyright one has to copy the form in which the ideas are expressed, using the ideas present in a work is not sufficient to have a copyright infringement.

Now if we read the article 2, §1 of the Berne convention, it is written « whatever may be the mode or from of its expression ». Thus, strictly speaking, there are no specific requirements for the « form of expression », as long as there is one. It can be words, images, sounds, etc., used to express the idea. We said it, fixation is one of the requirements to claim for copyright protection, but once the ideas are fixe in some tangible medium of expression, protection is immediate.

In this case, can we say that the taste of a cheese is fixed in a « form of expression »? Can the recipe be considered as the form of expression of taste? According to us, it can’t, especially since there are too many variable factors in the production process of the aliment to link a recipe with a specific taste. Indeed with the exact same recipe, taste of a good can be different depending on the way the recipe is executed, the experience of the worker doing it, quality of the different components, etc.

If we don’t consider the recipe as the form of expression of taste, then another one has to be made. The problem is, if two people with different tastes try the same aliment, they could describe the taste of it in a completely different manner. Therefore, it seems difficult to us to express something as subjective as taste in any support.

Stability of form and protection

Nowadays, giving a simple and efficient protection to tastes only based on copyright is nearly an impossible task. In fact, the complexity of the problem is due to the lack of precision given to the concept of “work” as it has been elaborated in previous cases of the CJEU such as INFOPAQ, BSA and FAPL. Hence, the classification of tastes as a “work” might be unpredictable and cause conflicts in many economic sectors. the French Supreme Court has categorically rejected the protection of scents, most recently in a decision of 10 December 2013. This shows that the highest national courts in the EU differ on a question that is very similar to the one at hand.

Actually, this legal uncertainty is caused by an important freedom granted to the evaluation of originality of an intellectual creation. Nearly everyone can give an opinion on the taste of a product but the difficulties to find a consensus on crucial elements such as a taste’s origin, the date of its creation and of course its exact description and scope (if not based on the recipe and/or list of ingredients). So, taste creates a fundamental instability on the legal consequences for the market players.

Finally, it can be argued that tastes or taste effects can be protected just as well via patent law and that the products themselves often also have other, more recognisable features that can be protected far more easily than taste under the existing intellectual property rights for example a protection focused on the packaging, the shape and of course the brand. Legal protection may also be possible via the trade secret rules and the rules on unfair competition, that seems to be more appropriate, giving a stronger and clearer fundament to taste protection. The fact that the CJEU’s guidance is now required prove how an answer to this question is necessary and how important is the instability for the market players.

Criteria for copyright infringement

As for any form of infringement, copyright infringement is subject to a few conditions. Indeed, the plaintiff, Levola, will not only have to prove its ownership of a valid copyright, but it will also have to prove that Smilde has rendered itself accountable of copying constituent elements of the work that are original. We will focus on the second condition, seeing as the plaintiff seems to have a valid copyright under its name.

The second conditional element aforementioned requires, in addition, not only the proof that Smilde actually copied Levola’s supposedly original work, but also the proof that such copying constitutes an improper appropriation of said work. However, as stated in the former sections, the plaintiff based its argument solely on the taste of the Witte Wivenkaas, characteristic other combinations of ingredients can obtain and that differs according to the subjectivity of whoever tastes it.

Conclusion

For all of the reasons stated above, we deem it excessive for the plaintiff to seek the infringement of its copyright by Smilde. The latter has but recreated a similar taste in its product, element that can be obtained without infringing the copyright apposed on Levola’s recipe itself. As such, we argue in favor of a retraction of the plaintiff’s request to impede the defendant from producing its product.

Alice Cordier
Haythem Khamri
Sarah Raymond
Trecy Delener
Valentine Daenen

IPdigIT exercice 2

Witches’ cheese v. White Women’s cheese
(Arguing in favor of the plaintiff)

In the context of the present work, there is a series of interdependent questions that need to be asked. The main one being on the possibility of protecting the taste of a food under European copyright protection law, would that same copyright, if existent, extend to cover the recipe or would it be limited to the taste? Eventually, if the answer is positive, how would the court of justice proceed its reasoning?

The first notion that needs to be taken into consideration is the notion of ‘work’. ‘Work’, as the EU court of justice states, needs to be the result of ‘the author’s own intellectual creation’. The Berne convention adds multiple elements to that notion of work from which we could underline for instance the fact that work ‘shall include every production in the literary, scientific, and artistic domain, whatever the mode or form of its expression may be’, besides, it is affirmed that ‘works in general or any specific category of works shall not be protected unless they have been fixed in some material form’. The WIPO guide adds that the ‘work must be intellectual creations’.

Considering all of the above, the first aspect we will take into consideration is whether the taste and recipe of a good can be interpreted as intellectual work. From a non-legal point of view, we can easily establish that a recipe is created from scratch. Every recipe goes through a procedure of optimization, as it needs to be thought of or invented, once the initial step is established, it could be tried out several times before reaching its final state that makes its result ready for consumption. Once these key steps are fulfilled, you could consider it as an intellectual work. The recipe is the fruit of the imagination and the creativity of its producer, and just like the author of a book for instance, it could be seen as the intellectual work of the person who is behind the composition of its different ingredients. Surely, it’s not a literary, nor a scientific work, but the question here concerns creativity. Like the ‘Centre National Privé de Formation à Distance’ states, a good cook needs creativity, taste and knowledge. The Court of Justice in its interpretation of the Berne Convention fixes creativity as a condition for the Convention’s application.
The second aspect that attracts our attention regards the ‘material form’ that a ‘work’ must take. Although there is no doubt that very little consideration has been given to taste and smell in the legal norms regarding this matter, in the case we are confronted with, there is no ambiguity as to whether the product invented, and put on the market by our client, fits that criteria. Surely, taste in itself is not material, however the product, food, from which it derives has a material manifestation. And as it is obvious that the notion of ‘taste’ and that of ‘food’, understood as any edible item, can be considered as inseparable, it can also be considered that the notion of ‘taste’ is materialized through the ‘food’ from which it comes.

It would be accurate to say that, in the light of what we have established this far, in accordance with the international treaties regarding the matter of copyright, the product to which we are confronted in this case is indeed an intellectual work and the object of the copyright infringement, taste, has found a materialized form.

On this stage of our work, a second notion will be at the center of our analysis, that is of the ‘originality’ of the work. To be classified as a work, ‘the subject-matter concerned would have to be original in the sense that it is its author’s own intellectual creation’. In the Infopaq case, the court specifies that ‘their author’s own intellectual creation is evidenced from the manner in which the subject is presented and the linguistic expression’. It is clear that we do not have a linguistic expression here, but the manner in which the recipe is presented let us think that its author had an ingenious idea and wanted to share it without being copied by anyone. Given the similarity in the tastes of both of our client’s cheese and the defendant’s cheese, it is clear that our client has indeed been copied by Smilde foods, if not having totally reproduced the secret recipe invented by the plaintiff, then by the clear lack of attempt, by the defendant, to hide the source of his inspiration.

An interesting point to underline is the fact that the Berne Convention does not give a precise interpretation of what exactly is protected by the term ‘work’. Adopting norms clear enough so as to be understood by any and every one is a general principle of Law that cannot be taken lightly. Rules need to be as clear as possible so that the judge can follow them without questioning their meaning. When a rule is unclear, a judge’s interpretation becomes inevitable, leading us to a ruling that can be considered as arbitrary, which, as we all know, is forbidden in a state where the rule of law prevails. Everybody has a right to equality in front of the Law, so how can we be equal in front of a norm which constantly needs a judge’s interpretation? To avoid that problem, we first recommend that a doctrine, general or official, take the time to develop the notion in question. With this kind of clarification, we will avoid litigations like that which will allow us to know exactly what is covered by copyright protection.

When it comes to the protection from which our client benefits, the Berne Convention states that the terms of regulations are determined by the member states of the Union: ‘It shall be a matter for legislation in the countries of the Union to determine the protection to be granted to official texts of a legislative, administrative and legal nature, and to official translations of such texts’. It also states that the protection, from which the author of a product benefits, shall also ‘operate for the benefit of his successors in title’, that means that in case the authority and protection of the plaintiff concerning the product are questioned, it is clear here that as the original author of the recipe, the local greengrocer who then sold his creation to Levola, legally transferred all rights and titles along with it. The Berne Convention further adds that there are no formalities to which the plaintiff is subjected to in order to exercise and enjoy his legal rights. According to this same Convention, the term of the protection that it grants doesn’t only last as long as the author himself is alive, but it continues for another fifty years after his death. We must certainly keep in mind that the Convention refers mostly to works which it describes as literary and artistic, however we now have extensively established the applicability of such notions to this case and to the plaintiffs’ product.

The precedent in the Eva-Maria Painer v. Standard VerlagsGmbH and other cases should not be taken into account as it is irrelevant to this case. Indeed, the court only states that a photograph should be protected by copyrights because it is only considered as ‘work’ as long as it ‘expresses the author’s creative abilities’. We would only be repeating ourselves if we were to go over, once again, our meaning of ‘an author’s creativity’. This same precedent also develops a second expression, ‘mise à la disposition du public, d’une oeuvre’, in the sense of making a certain work available to the public. Once again, that condition is respected in the present case given the fact that the cheese produced by our client was well-known on the market and the originality of its recipe was just as notorious.

Under the copyright Act of 1994, Copyright may be infringed by any person who acts in a way which is only reserved to the copyright owner, or its licensee, since only he detains the exclusive right to do. This includes making copies of the copyright work, offering or distributing copies to the public, importing copies, possessing copies and the making of an adaptation of the copyright work.

Concerning the terms ‘communication to the public’, the precedent of Football Association Premier League Ltd and Karen Murphy, judgment of 4 October 2011 which develops the fact that the retransmission, issue in the case, constitutes a communication to the public. As the copyright directive indicates, the authorization of the author of the work is necessary. To copy and retransmit somebody else’s work to the public, an authorization is required, such a formality is not fulfilled in our case.

In the decision of Football Dataco and Others v Yahoo! UK Ltd and Others the Court observes that the notion of ‘intellectual creation’, which is a necessary condition in order to be eligible for copyright protection, expresses creative ability of its author in an original manner by making free and creative choices. The notion of an author’s intellectual creation refers to the criterion of originality.

In the judgement Institute v. World Programming LTD, WPL, the Court found that “the reproduction, in a computer program or a user manual for that program, of certain elements described in the user manual for another computer program protected by copyright is capable of constituting an infringement of the copyright. Like the Court declared, it’s the reproduction that creates an infringement of copyright. In the Cheese case, it’s clearly the reproduction of the cheese by Smilde that rises the issue. To see if there is a reproduction, the Court must compare the two subjects of the issue in order to see if there’s a reproduction. As a result, and even if the Court doesn’t say clearly that the taste should be protected by the copyright, it should compare the two products in terms of taste and recipe and exam the similarities and the differences in order to decide on the existence or not of an infringement of the recipe.

In order ‘To establish primary infringement of copyright under the Act, three elements must be proved:
1. A substantial part of the copyright work must be present in the alleged infringing copy;
2. There must be objective similarity between the copyright work and the alleged infringing copy. Whether there is objective similarity is largely a matter of impression for the Court; and
3. There must be some causal connection between the original work and the alleged infringing copy in the sense that it is clear that the alleged copy came from, or is substantially based on, the copyright work.’

If we apply the three conditions of an infringement of copyright mentioned above to our case, the following comments may be raised to the Court:
1. Is the taste of Heks’nkaas protected by a copyright? If the answer is affirmative, that means that Smilde would have infringed that copyright.
2. The second condition of the infringement of a copyright is an objective similarity, the similarity here would be the taste. Through that ascertainment, and in light of what was developed above, we can admit that the taste could be protected by copyright.
3. A causal connection between the two items in conflict exists. Following the commentator from Holland, who said that the cheese could not be more Dutch thanks to the recipe, it’s clear that the recipe is the same and that Smilde clearly copied that recipe.

Should intellectual property, and copyright in particular, apply to tastes and smells? The Heks’nkaas case – Plaintiff

Notion of work (subject matter of copyright):

It is well recognized, by the Court of Justice of the European Union included, that there is no definition of a ‘work’ understood in its protection by copyright as such. Indeed, article 2.1. of the Bern Convention proposes to its public a long open-list that includes every production in the literary scientific and artistic domain.

Every proposition of positive law is to be interpreted reasonably, in the light on its evident purpose. Therefore, in order to grant a comprehensive protection to the authors, the Court has every reason to broaden the categories of work eligible for copyright protection.

In the case Stichting Brein v. Ziggo, on the liability of an internet intermediary for copyright infringement (‘The Pirate Bay’), the Court attempted to “sidestep the existing gap in the reality by overexpanding the harmonised rules of direct copyright liability”. Indeed, whereas software and videogames had been considered as types of work, bootlegging was recognized as prohibited under the protection of copyright.

Moreover, how is out object of discussion defined? A taste is the sensation of flavour perceived in the mouth and throat on contact with a substance. A smell, in turn, is the faculty or power of perceiving odours or scents by means of the organs in the nose (according to the oxford dictionary).

Accordingly, the protection of a recipe and a product smell or test does not appear any less real to what music might be to hearing. How come a certain combination of specific and tastes is not the exact signature of one author’s personality, personal touch? Isn’t there enough room for choice when it comes to elaborate a recipe? The personality of its creator necessary transpires in the work. This is precisely why perfume are subject to tremendous protection and one of the reason why Mr. Painer saw his photographs being protected by copyright (CEDJ, 1st Dec. 2011).

One might say that listing of ingredients as in recipes or formulas might not subject to copyright protection and that it needs to be accompanied by substantial literary expression in the form of an explanation or direction in order to be a basis for copyright protection. This might push the Court to examine with more details the two creations (name, brand, packaging of The Witches’s cheese compares to the White women’s cheese).

Originality:

The concept of originality is used to distinguish works that are sufficiently original to warrant copyright protection from those that are not. It means that it comes from someone as the originator and that it has not been copied from another work. The question here is to assess whether taste can be considered as an original work.
We can make a link with the Supreme Court’s 2006 ruling « Lancôme v Kecofa », which was about a perfume’s scent being eligible for copyright protection. In this case, the Supreme Court focused on the fact that, as with any other perceptible expression, if a smell is original, it could in principle be copyrightable. Levola believed that if fragrances could be protected by copyright, the same should apply to tastes.

The district Court of The Hague, in this judgment, followed the Lancôme v Kecofa case and decided as a preliminary opinion that taste could also be protected under copyright law. After actually having tasted both cheese products the District Court held: « The taste of Heks’nkaas would fulfil the criteria for copyright protection and would meet the threshold of original character and of the taste carrying the personal mark of its author/creator ».

Distinction between form and idea:

The article 9.2 of TRIPs sets out “copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concept as such”.
Copyright protects the form of expression of ideas, and originality is the condition. You do not need any formality to apply for a copyright protection.

Copyrights protect expression and patents protect inventions, but neither protects ideas as such. The existence of a form of expression is absolutely necessary to protect a creation as such. But it is not always easy to separate both because the limit between the idea and the form of expression is hard to perceive.

The idea has to be concrete enough to receive a protection by the law. Ideas alone cannot be protected. You need to think in term of “invention” because it is the only way it could actually be protected by the law. You have to get from ideas to inventions: if what you have is not an invention but only an idea, you should think about protection afforded under the copyright law.

Many people will have great ideas but won’t be able to put it into an appropriate package for a patent, because there is no invention, only a concept.
After you come up with the idea or the concept, you need to put together a strategy on how to carry the idea through. Together, the idea and strategy will form what law calls “conception” and a protection will be granted.

Of course, the initial idea you come up with is the most important. But in order for it to be protected by the law, it is imperative for the creator to find a way of embellishing the initial idea and create an original conception.

Stability of form of protection:

This question might have two answers… :
We first have to consider the difficulty to actually channel a taste in order to protect it with copyright. A taste is extremely subjective, it can depend on a person’s taste, a person’s mood, his state of hunger,… And food is first of all a primary need, would it be a good idea to limit its production ? Than it wouldn’t be food to feed people but food as art, only then a copyright would be admissible. Indeed, copyrights protection only applies on works, which includes « every production in the literary, scientific and artistic domain, whatever might be the mode or form of its expression ». That non exhaustive list doesn’t include food, except if we consider a meal as a piece of art, which changes the purpose of the object. Second of all, a food product is too instable. Food can rot, it can change shape, it can be cooked, it can be destroyed, eaten,… How would anyone enforce, in practice, a copyright protection on a piece of food ? It’s extremely difficult.
On the other hand, the chemical formula could be taken into account. It was already done in the Supreme Court’s ruling ; Lancôme v. Kecofa, of 2006. In that case, the Court held in favor of the perfume producer, saying that a sent can be under copyright protection because of its chemical components. In order to use this criteria to decide whether a food product infringes on another’s copyright, it would be imperative to ask chemists or professional food testers to objectively verify if the taste is copied. But even then, how can we be sure, the concept of food is still very relative…

Criteria for copyright infringement:

There is a difference in the copyright infringement in civil law countries and in common law countries. However, in both systems, the criteria are the following:
− substantial similarities/taking
− proof of copying/access: there was an access and a real copy of the original and protected work

In both systems, if substantial similarities, there is a presumption of copying/access → reverse the burden of the proof: the defendant has to prove that he didn’t copy. In civil law, if there are similarities, you have an infringement. Differences do not matter. The rule is that you only take into account similarities with the work and ignore the differences.
Courts find copyright infringement when an accused work is “substantially similar” to a pre-existing work, as a result of copying by an infringer. Often it is difficult for a plaintiff to prove actual copying, since there often are no witnesses to the actual act of copying. In those cases, in order to show copying the plaintiff must be able to demonstrate that the accused party had “access” to the earlier work – in other words, an opportunity to see, hear or otherwise experience the infringed work.
So, a finding of copyright infringement requires both of these elements: substantial similarity and access/copying. It stands to reason that mere access, without any substantial similarity, is not infringement. After all, you certainly are exposed to many copyrighted works every day, and you probably create potentially copyrightable works of your own every day – provided none of “yours” are substantially similar to the any of “theirs,” there is no infringement. They’re just your own works.
Likewise, the defendant’s access to the prior work is a critical element, and without it there will be no infringement. This means that (at least theoretically) it is possible for two people to create identical works without infringement. For example, two photographers could take identical photographs and, if the second photographer created the work solely from his own artistic sense and had never seen the first photographer’s image, there would be no copyright infringement despite the substantial similarity of the works.
There are times when “substantial similarity” is not an issue. Think, for example, of a case involving the reproduction of a digital image or a recording in digital format. A digital copy is about as identical as something can get, so in those cases the only real issue is whether the defendant had access to the original work so that copying could occur.

Comparison between the protection of tastes by copyright and by trademark:

First of all, before proceeding to a comparison, we prefer to develop the main characteristics of both terms.
Copyright is for original works of literature, drama, music, art or intellectual property. Once an original piece is finished, it automatically receives copyright protection. Copyrights can be designated by attaching the symbol ©, the full word “copyright,” or the abbreviation “Copr.” Available to published and unpublished works, a copyright gives the owner the exclusive right to reproduce the work, prepare derivative works, distribute copies and perform/display the work publicly. Copyrights require no publication or registration with the U.S. Copyright Office, but there are advantages of doing so. To register your piece, you can file an original claim to the U.S. Copyright Office by completing an online registration or filling out the “Form CO.” Copyrights do not cover titles, names, phrases or slogans, symbols, designs, ideas, procedures, methods, concepts or discoveries. A copyright’s protection generally lasts for the life of the author(s) plus 70 years.
Trademarks are for words, symbols, devices or names that are used to distinguish the goods of one manufacturer or seller from that of another. Any distinctive name, symbol, or word is designated as trademarked with the symbol ™. The trademark designation notifies others that the product’s name and design are the company’s property. However, this trademark does not protect the company from another company that produces a similar product or uses a similar name. If such a thing were to happen, the original company would have to prove that it produced the name or design first, but still may not have a legal defence without a registration.
After having detailed it, it seems better to make a small comparison.
While both offer intellectual property protection, they protect different types of assets. Copyright is geared toward literary and artistic works, such as books and videos. A trademark protects items that help define a company brand, such as its logo. For example, Acme Publishing Company can trademark its name and logo, but would copyright books and videos that it created.

Why objects that are perceived by a sense other than by sight or by hearing should be treated similarly (or not) as objects perceived by sight or by hearing (anthropological and philosophical questions)?

1° Every production we make is full of subjectivity, therefore there is no reason to exclude one category of objects on the basis that it is too subjective to be protected by a copyright. Because of the sensory immediacy and lack of distance involved in taste and smell sensations, they are what we might call purely private sensations, anchor in one’s subjectivity. But the objects perceived by sight or by hearing are anchor in one’s subjectivity too.

The well-known Ludwig Wittgenstein refers to ‘l’Etat de chose’, common to us all, by comparison to ‘les phénomènes’, specific to each, that are, the synthesis of our data and structures, the reality as it appears us. According to Nietzsche as well, appearance is the only thing to which Men can access. Appearance is reality. These are our relations, experiences that define what exists or not. This appearance is our perception, our point of view and in order to define something as it is (in the most objective way), one must know all the point of view. However, Men is incapable to see this something as it really is through all perceptions. Our organs are too coarse too see this world. Therefore, Men creates its own perception of the world.

By definition, what is subjective and specific to each reflects the person’s personality, perception, life experience. That is why a taste, a smell, might be understood as a Men’s perception, a Men’s creation based on its perception, as well as every other object.

2° Moreover, our being on earth has been deeply modified nowadays. With the issue of globalisation, creations and ideas are becoming much more fungible and widespread.

What is expensive in the process of creation is precisely the research. The whole investment by which one creates a work, an idea that becomes then much more concrete. With this new mentality, this new approach that rules our world, one shall do everything in its power to short circuit the spending. In order to do that, plagiarize is an easy solution; you might take advantage of this research that has already been made and then limit the cost of your new so-called “creation”.

Those situations are one of the reasons why it is more than never important to protect those creators that invests in order to make the world a better place, to spread new ideas, to improve arts, development and so on. In this direction, there is therefore no reason why this protection should be limited to objects perceived by sight and by hearing.

Sources

− http://smallbusiness.chron.com/differences-between-copyright-trademark-3218.html
− https://davidsontm.wordpress.com/2010/09/28/what-constitutes-copyright-infringement-and-how-is-it-decided/
− http://www.ipwatchdog.com/2014/02/15/protecting-ideas-can-ideas-be-protected-or-patented/id=48009/
− http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1021&context=jipl http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1021&context=jipl

Lucile de Timary, Clémentine Bouffioux, Megan Kuperblum, Elisabeth Boonen, Violaine Barthélemy, Léa De Jonghe, Dounya Galichon.

Should intellectual property, and copyright in particular, apply to tastes and smells?

Camille Donner, Léa Karam, Charlotte Kin, Deborah Lunguana, Marine Maroy

Wednesday, Nov. 15, 2017

The Netherlands Appellate Court referred questions concerning the type of object that can be considered as copyrightable to the CJEU.

Can a particular taste be protected under copyright law? How could CJEU allow such a protection? Is this possible on the basis of the case law and the current legislation?

Our position is that yes, there is a protection for works that are not perceived by sight or hearing, such as the taste of a food product. We are thus in for of the plaintiff.

Indeed, under the Berne Convention, no requirements are needed to get the protection. There are no formalities (art. 5.2). If the substantive conditions are fulfilled, the taste of the cheese is automatically protected. The only issue discussed deals with the subject matter.

First, do we have a « work »? Defining the notion of work is essential to establish the scope of the copyright protection. Article 2.1 of the Berne Convention contains a list of works and it’s important to remember it is an open-ended list (see the terms « such as »). It is not because the taste of a cheese does not seem to fall within that list that protection of the alleged infringing cheese should automatically be rejected. The Berne Convention provides a wide definition of the concept of work : « every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression ».

From our point of view, the alleged infringing cream cheese fell within the expression « literary and artistic work » because the article 2.1 of the Berne Convention establishes a wide definition of the concept. We believe that the taste of a food product as a work of applied art. We do not apprehend in a conceptual art because we don’t talk about an artistic technique but a realistic and factual technique. We have facts (ingredients) that are mixed and assembled in order to create a form of an expression. Therefore, we cannot discuss the existence of a work because there is no doubt that there is a work of creative freedom.
Under the Berne Convention, originality is not required. But national copyright law and EU directives do mention the criterion of originality. Therefore, let’s take a look at that element. A subject matter is original if its author owns intellectual creation.

We could compare the work of a food taste to photographs of an artist. Indeed, in 1884, in Burrow-Giles Lithographic Co v. Sarony, the SCOTUS established that photographs are « a useful, new harmonious, characteristic, and graceful picture (…) (which the author) made (…) entirely from his own original mental conception, to which he gave visible form (…), arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by the plaintiff, he produced the picture ». To cut a long story short, whenever a photograph is free and creative, it means there is room for creativity so originality and therefore protection. Therefore, if it’s the case for photograph, we do not see why it would not be the case for creators of new tastes. As we mentioned earlier, a specific recipe is used to get the product Heks’nkaas. The ingredients were thoroughly chosen. More recently, the CJEU agreed on the protection of photographic works.

In that same idea, the taste of cheese should be protected like short sentences of very few words sometimes are. Just like the author of the title minutely chooses the words, the producer of the cheese has used very specific ingredients.

It has already been established that a perfume’s scent may b covered by the protection of copyright in Lancôme v Kecofa. In this case, the Dutch Supreme court held that the smell of a perfume may in principle be eligible for copyright protection. The court based its reasoning on the open-ended requirements for protection. As smell as taste are original, they could be copyrightable.

To be entitled to sue, the plaintiff must be the owner of the right. In this case, the cheese’s recipe was detained by a local greengrocer and then sold to Levola. Levola, the plaintiff, is thus entitled to sue the defendant for infringement of copyright.
A related difficult and complex issue is whether intellectual property protection requires some stability of the creation and the possibility of an ‘objective’ perception of the protected object. In this case, as long as the recipe shows some sustainability, we can affirm that the taste experience will be similar or identical for all consumers, despite the fact that it might vary more between human beings than visual experience. Why? Let’s take an example of a much more popular product like Nutella. Even if we admit that the perception of taste varies according to the consumer, we can reasonably assume that the taste of Nutella is characteristic enough to be objectively recognizable. Therefore, it is in our view relevant to require some stability of the creation and the possibility of an objective perception of the product. Concerning the first requirement, the argument is simple: it is about preserving legal certainty by insisting on the durable and stable nature of the element at the origin of the copyright. On the other hand, and by reasoning by analogy, we can deduce that the taste of the Heks’nkaas cheese is susceptible to an objective perception since it depends on a constant and specific recipe. In our point of view, the physicality of tastes do not appear any less real, or substantial, or fleeting, than the case of live musical performances or words written in the sand, yet even these experiences may enjoy some level of copyright protection. Moreover, the expressions of the world’s finest chefs and perfume makers in their dishes and perfumes, respectively, seem no less original, creative, or deserving of respect than that of visual artists, writers, or composers. Definitely, copyright protection should be expanded to include scents and tastes. Some can argue that the sensations of taste are inescapably immediate and private, suggesting that they lack the kind of public dimension that visual and audio works exhibit. But still, taste remains a way of communicating some artistic sense, even if it is limited in its functional dimension, because it privileges an individual contact with the consumer.

Now that we have established there is a copyright, we have to prove there is an infringement. In civil law, you just have to check if there is a substantial similarity (you do not have to prove that the defendant has access to the work of the plaintiff). Here comes the difficulty because taste is subjective, it varies from one person to another. However, it seems reasonable to think that the cheese produced by the plaintiff has a specific taste because of the use of certain ingredients (see supra). Most people can tell if a taste is similar to an other, it is possible, even if there is a part of subjectivity, to determine if two tastes are similar. It is just the same thing as in the previously cited Lancôme v. Kecofa case. The decision of this case implied that even if different ingredients were used, but the smell of the perfume was the same, it could be considered as an infringement. If a scent can be protected because there is a substantial similarity with another scent, why wouldn’t it be the same for taste? Both tastes and scents involve a part of subjectivity but judges in this case seemed to be able to determine a similarity between two scents. An analogical reasoning can be applied to the Heks’nkaas case.

In order to conclude our reasoning, we must say a word of the distinction between form and idea. In principle, material forms of expression are protected by copyright and ideas are not. But ideas associated with taste are immediate and private sensations and objects of the mind inseparable from their expressions. The taste and its support (cheese) form an indissociable whole. As a result, it falls under the category of things protected by copyright. Yet, an argument in favor of protection of tastes can be found by analogy from the copyright protection on Jamie Oliver’s cooking books or on Lancôme Tresor perfume smell. If the cheese’s taste might comply with the perceptible expression, then the debate on copyright protection of taste is still open.

As defendant, we choice the first issue, namely the taste of a cheese that cannot be protected by copyright.

I. First part of questions : Pending questions before the CJEU:

A. Does Union law preclude the taste of a food product — as the own intellectual creation of the author — being granted copyright protection? In particular:

(b) Is copyright protection precluded by the fact that the expression ‘literary and artistic works’ in Article 2(1) of the Berne Convention, which is binding on all the Member States of the European Union, includes ‘every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression’, but that the examples cited in that provision only relate to creations which can be perceived by sight and/or by hearing?

We consider that the literary and artistic works which are mentioned and exemplified following Article 2 (1) of the Berne Convention only concern audio or audiovisual works, that only these are protected.

How can we understand this decision to don’t protect certain creations, certain works that escape certain senses?

We can’t understand how a taste or olfactory monopoly could be held as perceptions of each other are sometimes very far apart, especially since other legal mechanisms exist to protect the creation of the recipe.

If we take for example the Coca-Cola company and their most famous product, Coca-Cola. This drink is made from Cola leaf and kola nuts (as well as many other ingredients).

It is not forbidden for anyone to take these ingredients and mix them, the company does not have the right to prohibit this, conversely an author who could prohibit the use of one of his literary works or artistic.

On the other hand they protect their product, the strategy adopted is based on the secret of the recipe, they decided to keep their secret expertise (skills), the recipe for making the drink is known only by a very small number of people using legal mechanism such as the confidentiality agreement.

The fact of combining different ingredients is, in our opinion, not a creation of the mind but a know-how (skills), which is expressed by the realization of several stages. The result can’t be protected, the process, as we just explained yes.

Moreover it seems difficult to reverse two images or sounds, to compare two tastes with objective criteria as perceptions can be different support isn’t material?

(c) Does the (possible) instability of a food product and/or the subjective nature of the taste experience preclude the taste of a food product being eligible for copyright protection ?

Yes, among others.
First, a taste cannot be eligible for copyright protection because it refers to a vague notion. Indeed, a taste can be found alone or with an association of several foods. Depending on that, the concept of taste is changing. Moreover, it would mean that you could prohibit a whole meal, if the taste of one copyrighted food is predominant.
Second, a taste cannot be both time the same with a different way to cook it. Would it mean that there is only one way of elaborating the taste that is prohibited? Or would it mean that approximatively that taste would be subject to prohibition? Then, the notion of taste would be broader and broader, leading to have multiple prohibitions from only one copyright. Therefore, you would have firms only protecting “their” taste, in order to cutting off the concurrence.
Third, the question will arise of what happens for the lower range of products, the so-called “Sous-marques”. Having min of more the same taste as the big brands, two things can appear: either big brands would win the battle, and the lower range will disappear, either big brands would lose the battle and copyright of taste will be useless, since creating a 90%-similar product would be fully allowed. In the first case, it would mean that even more monopolies would arise in the consummation, with the opportunity for people to buy a less expensive product being shut. In the second case, the whole purpose of taste copyright would be hollowed out.
Fourth, what more personal is, but as the concept of taste depends strongly from that subjectivity, it appears to be relevant, I think the taste of one good can only be appreciated in a context of production, and with the context changing, the taste does so. To illustrate it, from my personal experience, the taste of Coca-Cola in Belgium looks way different than what it does in Italy.
Fifth, taste experience is subjective. This affirmation looks as evident, but is nevertheless totally correct, because the decision about the taste cannot be the same from one judge to another. In casu, it is impossible to judge if the taste of “Heks’nkaas” and the taste “Witte Wievenkaas” are the same. Even a professional would not risk his career on that. Because the law must aim the common citizen, it would be impossible for the majority knowing the difference. Amongst all human senses, taste sense is the more subjective because we cannot regulate this sense. It also varies with some factors like the person’s age, the health status (with a blocked nose, our tastes are not totally exact, etc.).
All those huge uncertainties lead me to think that the copyright of taste in itself does not provide a decent answer, with mechanisms of control lacking. Maybe a copyright of a recipe would be more relevant in that matter, being written, it would reduce the subjectivity, what constitute above all the main obstacle.

(d) Does the system of exclusive rights and restrictions, as governed by Articles 2 to 5 of Directive 2001/29/EC, 1 preclude the copyright protection of the taste of a food product?

First of all, we have to specify the scope of those provisions. The article 1 of the Directive 2001/29/EC “concerns the legal protection of copyright and related rights in the framework of the internal market with particular emphasis on the information society.
It’s important to say that the directive concerns the protection of legal protection of copyright and related rights, mainly in view of the information society and all those consequences.
Accordingly, the scope is greatly reduced. Thus the directive concerns mainly the protection of the intellectual production which are :
a. the legal protection of computer programs;
b. for phonogram producers, of their phonograms;
c. for the producers of the first fixations of films, in respect of the original and copies of their films
d. the legal protection of databases.
e. …
All of those examples concerns mainly audiovisual field’s (more precisely, digital format) and it will be difficult to say that the Directive preclude expressly the copyright protection of the taste of a food product.
But claiming the opposite will be wrong too. If it would be the case, the scope of the Directive would be expanded and would be opposite to the aims of the Directive herself.
Indeed, the recitals 4 and 6 of the Directive are expressly about “including network infrastructure” and all about the technological development. Giving a scope that the directive hasn’t would be as wrong as we said it.

Therefore, the article 5 restrict the field of the protection. Indeed, it define and restrict the scope to “the temporary acts of reproduction referred to in Article 2, which respond to a specific purpose, namely :
a. a transmission in a network between third parties by an intermediary, or
b. a lawful use
Once again, we see nothing in that definition which can refer to the protection of taste.
Finally, the intellectual property right is founded with a balance between restriction and freedom of trade, whish has an important role in the European law. Protecting the taste would go against the spirit of the European law, namely the freedom of commerce.
As has already been said, we can’t give to the Directive, a scope that it hasn’t. The use of that Directive is irrelevant to protect the taste of product and, obviously, there is no need for a positive reply.
Therefore, the request must be rejected.

II. Second part of questions :

1. This exercise has also to compare the protection of tastes (and smells/scents) by copyright and by trademark (even if this comparison would not be directly useful in the judicial strategy and argumentation before the Dutch court).

It is interesting to look at copyright and trademark when we speak about the protection of tastes. According to the Oxford dictionary, copyright is “the exclusive and assignable legal right, given to the originator for a fixed number of years, to print, publish, perform, film, or record literary, artistic, or musical material”. Also, trademark is “a symbol, word, or words legally registered or established by use as representing a company or product”. Therefore, both offer intellectual property protection, they protect different types of asset. Copyright deals with literary and artistic works (such as book and videos) and trademark protects items that help to define a company brand (such as its logo). Moreover, the registration processes of copyright and trademark are entirely different. First, for copyright the filing fee is small, the time to obtain registration is relatively short and examination by the Copyright Office is limited to ensuring that the registration application is properly completed and suitable copies are attached. Conversely for trademark the filing fee is more substantial, the time to obtain registration is much longer and examination by the Trademark Office includes a substantive review of potentially conflicting marks that are found to be confusingly similar. While copyright registration is primarily an administrative process, trademark registration is very much an adversarial process.
Is it possible to apply this concept to taste? No, it can’t. To obtain registration of a taste, it has to be visually represented. But how does one represent a smell in a visual way? Writing down the chemical formula for a smell is problematic as it is deemed to represent the substance rather than the smell of that substance. Taste is too abstract to be writing down in an objective way.

2. At a higher level, you could add arguments relating to the relative difficulty of the legal system (and intellectual property) to take into account the realities that are not perceived by sight or by hearing. There might be  anthropological and philosophical questions about our true relationship with the objects of the world and our limited senses.

At a higher level, we could say that this is basically impossible for a judge or anyone else to decide whether or not a smell or a taste is the copyright of another. Considering that smell comes from chemical reactions, we can say that people doesn’t “feel” the taste the same way. The taste, the smell is specific to everyone, we don’t perceive the sense of the world the same way. The taste varies according to the density of the taste buds. So on a scientific level, this is impossible to judge a taste or a smell considering that we don’t feel it the same way.
At another level, we also have to think about the fact that people don’t have the same “relationship” with taste or smell. Taste and smell are associated by the brain with emotion. You can smell something which will remind you of your last summer holiday for example. So we can see that they are characterized by certain instability and by the subjectivity of the perception by the user.
A judge cannot decided on a taste or smell if it doesn’t apply the same way to everyone.

Intellectual Property Law
“Should intellectual property, and copyright in particular, apply to tastes and smells ?”

Introduction

The Court of Justice of the EU has to adopt a position concerning copyright on tastes and smells. The plaintiff, Levola, sells a popular product called Heks’nkaas. The secret recipe of this cheese spread was developed by a local greengrocer, and then sold to Levola. The defendant is Smilde Foods which also distributes a cheese spread called Witte Wievenkaas. Levola claims that the taste of the Heks’nkaas is protected by copyright and that, by marketing the Witte Women’s cheese, Smilde infringes its copyright.

§.1. Subject matter of copyright

The article 2 (1) of the Bern Convention doesn’t preclude the copyright on tastes and smells since that it only gives an open-ended lust of works. Therefore, it would be possible to add new copyrights based on case law.
However, to apply copyright on tastes and smells, some conditions have to be respected even if those are not explicitly written in the text. The two main conditions are the existence of a form of expression and the criterion of originality.

Moreover, the European Court of Justice might do an analogy in order to justify the possibility to create a new protection on work. Indeed, concerning trademark, the article 4 of the CTM regulation insists on the criteria of distinction. Trademark protects something that is used to distinguish your good. In this case, the use of a mayonnaise-based sauce might be considered as the factor that distinguish the Lavola cheese from others. Furthermore, as taste is not a traditional trademark, it could be considered as a non-traditional trademark. The idea would be for the Court of Justice to protect the taste of a product such as cheese thanks to trademark the same way it protected scents (Sieckmann v. DPMA) or sounds (Shield Mark v. BMB).

A. Originality

Originality is a condition of the forms of expression of ideas. There’s no need of a registration for the copyrights as long as there is originality. In this case, Levola claims that the cheese taste should be protected since it has been created to be original and different from the others. Originality is the main condition of a copyright, it shows that a work is good enough to be protected by a copyright.

Here, in the case, Levola has a very original recipe of a cheese with mayonnaise. It is obviously a one of a kind cheese and he naturally wants to protect it.
It’s important to understand that originality doesn’t care about aesthetic, it can be something absolutely weird or with no sense but as long as it is original and that it comes from the author, the condition of originality is respected.

There are several cases related to the question of originality.
The first one is the case of the picture of Oscar Wilde. The photo was taken by Napoléon Sarony and reproduced later by a company named Burrow. Sarony decides to sue the company. At first it was said that Sarony hadn’t invented the technical process of the photograph but he claimed that he was the one who did the arrangement of the background and other things. Therefor he could be protected by copyright.

Another case related to originality is the Infopaq that offers a media monitoring and analysis business. It prepares summaries of articles from Danish press using a « data capture process » based on scanning. It was sending sequences of words. The problem was that in the definition of the EU directives wasn’t talking about press articles. But the court said that it should apply and that words could benefit of a protection.

B. Distinction between form and idea

Concerning the existence of a form of expression, the article 9 (2) TRIP’s prohibits the protection of ideas or methods of operation. copyright law provides protection to the expression of an idea, and not the idea itself. An idea is a thought, a mental image, or a conception of a theory.
An idea can be described as a subject-specific formulation of thought when its expression constitutes implementing it. In Levola v. Smilde, the whole issue is to establish whether the receipt is an expression of the idea or an idea in itself. When relating to the definition of the idea, it is clear that the receipt may be considered as the expression of an idea and therefore, copyright may apply. Indeed, in a photograph, only the elements contained in it that express the original idea are protectable. This means that elements derived from the public domain cannot be protected. By analogy with taste, the Court could consider the receipt as the original idea given that it is the accumulation of elements derived from the public good that creates an original idea.

§.2. Criteria for copyright infringement

Copyright infringement exists if someone who’s not the work’s creator reproduces a work protected by copyright law. To determine if the defendant has committed a copyright infringement, two criteria’s should be taken into account : the criteria of “substantial similarity” and the defendant access to the pre-existing work.

The criterion of substantial similarity means that the level of similarity should be enough to prove that the defendant copied a part or the totality of the initial work. Of course, it can be difficult to demonstrate that the defendant has made a voluntary reproduction. Therefore, the plaintiff should be able to show that the person accused had access to the prior work.
However, when substantial similarities are alleged, there is a presumption of copying which reverse the burden of proof. Indeed, the defendant has to prove that he didn’t copy and didn’t have access to the initial work.

In the Witches’ cheese v. White Women’s cheese case, the plaintiff, Levola, bought a new recipe of cheese to a local greengrocer and sold it on the market. The defendant, Smilde Foods, also promotes a cheese called the white women’s cheese. Levola argues that copyright law protects the taste of its cheese and that it exists a similarity between the taste of its cheese and Smilde Foods’ cheese.

Therefore, due to the existence of substantial similarities between the two products, there is a presumption of copying and Smilde Foods has to prove that he didn’t have access to the recipe of Levola’s cheese. Without this allegation, it can be concluded that there is a copyright infringement committed by Smilde Foods.

§.3. Stability of form of protection

The question asked here is whether the invaliditiy of the food product precludes it from being eligible for an intelectual protection ? We are of opinion that it should absolutely be possible despite the instability of the product. The purpose will be for the ECJ to answer in a way that clarify the situation and does not lead to numerous cases of juripsrudence. The Court should establish clear criteria where a copyright can be allowed and therefore establish a stable protection.

While creating this cheese, the author appealed th his creativity to make an original product. We should take into account that the different ingredients that were used (such as moyonnaise and garlic) are not those required in general to make a cheese. The opposite part will surely invoke the difficulty of according an IP on the cheese because of the subjective dimension of taste and scent. However, an analogy can be made with conditions for trademark. In a case of the protection of a scent/taste, there is a need of a geopgraphic representation for registration because other people needs to know the scope of the object. In Sieckman v. DPMA, the ECJ said the lack of visual perceptibility can’t be a motive to refuse a protection and the trademark must be presented in a manner that is clear, precise, self-contained, easily accessible, intelligible, durable and objective. In our case, the identification of the taste can be really precise and even more the recipe with the exact of ingredients can help to the indentification.

Conclusion

To conclude, we would like to qualify our opinion: we have defended the position of Levola, asking for a copyright protection to a taste because according to us, it is important to protect the work and the efforts made by someone. However, we think about copyright as a reward, more than a right, given to the creator of something new and original. If everything, sounds, words, signs, art, graphics, etc, is protected, it would be impossible to create something new and not inspired by anything today.
As intellectual property can confer a monopoly to someone, these can have a negative impact, according to us, because it affects prosperity and liberty. If to much monopolies are granted, it will put an end to creation, because every invention inspired, even a little bit, by the work of, that is protected by this form of intellectual property, could be attacked before the courts.

As we saw it in our last paper, copying is everywhere and it can be positive. Copying allows people to create new things that are original and never seen before. If laws put restrictions all around every pieces of work, nothing new could be ever brought to life because of this overprotection.
This is why we are in favor of the claimant, as they state it in the judgment, their recipe is very original, and when we read all the ingredients mixed together, we must say that we would not have had this idea.
When it comes to this point of originality, we agree that it deserves a particular protection and this is why we think about it more as a reward.

Notion of Work
According to the Berne Convention, the subject matter of copyright protection is a “literary or artistic work”. The problem is that the notion of work is not clearly defined. The disposition refers to “every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression”. The list settled in this article is not exhaustive, which means that the notion of work is up to the discretionary power of the court. The list includes many creations such as books, sculptures and illustrations. In addition, the list has been expanded to other types of creations such as computer programs or databases. Interestingly, taste and scent are not part of the list and courts did not integrate them in the list.

Firstly, the article refers to the terms “ the form of its expression”. Taste can oddly be considered as an expression. Taste is rather a perception. It goes from the product to the person and not from the person to the product. According to many definitions, the term “expression” refers to the showing of ideas or feelings through words, actions or artistic activities. No definition refers to taste as being a work or an expression. You cannot express something through a taste, as you would do with, for instance, a painting or a music composition.

Secondly, taste is something variable. It is not a stable mean of expression. Furthermore, taste is subjective. The taste of a product can change anytime. Sometimes, it comes from the ingredient itself but it can also comes from the different taste’s perception of another person. The one tasting the cheese can have another appreciation of the taste than the person who creates that taste. One person will appreciate a certain taste from a certain product while another could appreciate another taste from that same product. After all, there is no accounting for taste. In other words, everyone’s taste is different.

Finally, it is relevant in this case to conduct a study of other legal systems. It will provide solutions for legal issues that have become more global such as intellectual property issues. In France, the Supreme Court considered (in a case with regard to perfume) that “copyright protects creations in their perceptible form”. In other words, a creation has to take a physical form. Taste is one of the fives senses and can rarely take a physical form. One could argue that a taste can be expressed through a recipe. However, recipes are often accompanied with oral instructions, proper gestures and a particular experience.

Originality

One of the main issues in the present case is to know whether the taste of the Heks’nkaas’s cheese can be considered as original or not. We can easily say that this popular Netherlands’s cheese is not original.

Originality is one of the main characteristics to determine if copyright law can protect a work. If it is considered as original, those laws will apply and protect the author from infringement. The threshold of originality means that the work has to arise from the author’s own intellectual creation. It has to come from the creativity of its creator.

In this case, we cannot say that this cheese is the own creation of the author for several reasons.

The first one is the fact that if anything happens during the production of this cheese the taste of it will be distorted. So the taste cannot be certain because it can depend on many circumstances such as the way of storage (temperature, dry or wet room, etc), the same quality of products use to make it every time or the maturation time. So it seems impossible to say that the taste of this garlic and leek cheese can be fixed. So every time the Netherlands Company make it there is a risk that it’s not exactly the same as the original model. So it’s a new creation and so it’s not possible to grant copyright protection to this taste.

There is also the fact that the only thing Levola can bring to justify the copyright protection is the recipe of the cream cheese. But many courts around the world consider that a simple recipe lack the requirement of originality. An example can be found in the United States when Melville Nimmer said that a recipe is dictated by functional consideration and therefore lack originality even though the mix of ingredient is original. It’s impossible to perceive the author’s personality a list of ingredients so it lacks of originality.
The Painer-case ruled by the CJEU in 2011 clearly says that it’s important to see the personality of the author in its work to grant protection under copyright law. In the case of recipe, there is no sign of personality because it’s just a list of ingredients and proportion.

Another argument can be made by an analogy with the question of the protection of scent by copyright law. One argument given is that it’s not always possible for people, without expertise in the field of perfume, to see the difference between 2 perfumes so infringement can arise easily. This can also be apply to the cream cheese, there exist plenty of cream cheese based on garlic and leek, it’s proved by the fact that the Levola Company have suited a lot of companies for infringement of there copyright protection.

A parallel can be made between copyright law and trademark law. To be protected by trademark law, the work as to be distinctive from other. If there is no distinctiveness the trademark office will refuse to give the trademark protection.
As said before, in copyright law the main issue is originality and there can be a link in a way between the requirement of originality in copyright law and the one of distinction in Trademark law. The taste of this cheese’s brand may not be distinguished from the taste of another brand because there exist plenty of type of cream cheese. So if this requirement of distinction is not fulfill, the taste won’t be accepted as trademark.

Distinction between form and idea
Art. 9.2. TRIPs : « Copyright protection shall extend to expressions and not idea, procedures, methods of operation or mathematical concepts as such ».
We argue that either the taste of a cheese cannot be protected by copyright in the same way that and idea cannot be protected by copyright.
Indeed, we relate the taste to an idea but not to a form of expression just because we don’t express ourselves through a taste.
Ideas cannot be protected. As long as it stays an idea, there is no protection. We need to express it. The format is the shape of the program and some formats are protected because it goes far from the description of the show.
For example we saw in class the voice. The idea to have no professional singer is not protected.

Before having tasted something, we only have an idea of what it could taste. The taste is something very marginal, abstract and subjective.
According to us, a recipe is not protected by copyright. In this way, it would be difficult for the taste to be protected too. However, some gourmet restaurants refuse that people take pictures of their dishes. They consider the beauty of their dish as a piece of art but this is very different from the taste.

// We can make a connection with the smells E.g: Lancôme v Kecofa case.
// We can also make a connection with problems of slogans.

Taste, like ideas, is something that comes out of the human brain but is very hard to conceptualize. It is difficult to describe on paper what we taste, which makes it difficult to protect the taste of cheese.

Stability of form of protection
Copyright tends to protect all forms of expression without any formal prerequisites as stated in the Berne Convention and Directive 2001/29. It is, therefore, questionable whether such protection could be extended to taste. As was argued in the previous subquestions it is very difficult to establish clear and precise criteria that would quantify taste objectively.
Now, even with these considerations in mind, let’s consider for the sake of the exercise how copyright extension could be applied to taste. Whenever objections would be raised to the launching of a new edible product by companies making similar products, the judge would have to find a way to test both products and to compare their taste to establish whether the new product is infringing on somebody’s copyright. By doing so he would be able to establish the common features in taste as well as the differences. Who would be given the difficult, not to say impossible task of doing this? If it is the judge, the opposite party could argue the judge lacks impartiality by using subjective considerations to adjudicate the case. Furthermore, when such a decision would be appealed the task of defining the common features in the tastes of the different products would fall into the appeal judge’s lap. This judge will probably not recognize the exact same features the first judge did. This first possibility would then have to be excluded. Another possibility would be the designation of an expert in taste. These experts would have to be designated by the party who suffer the burden of proof. Naturally, that will unarguably lead the opposite party to designate an expert of their own to counter the observations made by the first one. This would allow for long and petty cases that won’t result in a clear and rightful decision based on objective criteria. Therefore, even if taste could be recognized as a legitimate form of expression that could completely be differentiated from similar recipes, the way to adjudicate seriously on such a matter would be next to impossible.

Criteria for copyright infringement
Before discussing what constitutes a copyright infringement, we think it’s important to remind what are the rights ensue from copyright laws.
Copyright laws provide the owner:
– exclusive right to produce and reproduce,
– distribute,
– perform,
– display or license the work,
– create or authorize the creation of derivatives of that work
So, an infringement is when someone does any of them without the owner’s permission.
Moreover, finding a copyright infringement requires two conditions :
– substantial similarity
– access to copy.
This conditions are essential, if one of them is not filled, there will be no infringement.
Sometimes it is even possible for two people to create identical work without infringement.
Furthermore, it is also probable that substantial similarities are not a problem (for example a case when someone copy a digital image).
In this concrete case, there is no infringement. Even though we can argue that there are substantial similarities between the two cheese, Heks’nkaas and Witte Wievenkaas, no one has access to the recipe and the litigious cheese is not even guarded by any of the aforementioned laws.

IpdigIT n°2: Should taste be protected by a copyright?

Position: Defendant, “Smilde Foods”, who produces Witte Wievenkaas. We are going to show that in this case, there is no infringement. We want to show that protecting a taste goes too far.

In this case, the question is, should a copyright apply to tastes? This case is a conflict between two companies which are producing a cheese. The heart of the problem is the taste of the cheeses. The first company is Levola, and she decides to attack the second company which is Witte Wievenkaas. Levola pretends that the taste of the Witte Wievenkaas is too similar to the taste of her cheese. Levola decides to sue Witte Wievenkaas, because she pretends that the taste of her cheese is protected by a copyright. But can a taste really be protected by a copyright? That’s the question which has been send to the Court of Justice of the EU by the Court of Appeal of Arnhem-Leeuwarden.

Regarding the question of whether a taste can be protected by copyright, we call for a negative answer. According to the dictionary, a taste is “the sensation of flavour perceived in the mouth and throat on contact with a substance”. This definition doesn’t match with criteria that are considered by legislative texts, either the EUCJ decisions. In order to establish our position, we will consider several aspects: The notion of work, the originality, the distinction between form and idea, the stability of form of protection and criteria for copyright infringement.

1. The notion of work:

According to articles 2 of the Berne Convention and 2(a) of the InfoSoc Directive, “works” can be protected. The term is very imprecise, and that’s way the EUCJ came up with a decision that clarifies a little bit what this notion means. In the DDF v. Infopaq case, she said that a work is an “intellectual creation”. This means that if a work would like to obtain a copyright protection, it must be shown that its author has made some creative, original choices. The case was about a newspaper article, so there’s no doubt that it can be considered as a work. The author chooses special words to express himself and his ideas, but we cannot apply this to our case. Here, we are talking about cheese, it will go too far. The Convention talks about “literary and artistic works” and list some kind of works, such as books, musical compositions, illustrations and so on. The list is open, we can add some notions in it, but we can see that all of those that have already been mentioned, have something in common. And taste doesn’t apply in it, because it can change, and differ from one person to another. Everybody can have his own experience of taste, which can vary considering different circumstances, like our age (as we get old, we may have different preferences), temperature and the fact that even if we are eating the same product, it can taste differently for both of us – one may like it and the other don’t.

In many of her cases, the EUCJ has reminded criteria for a thing to be classified as a work. In the Football Association Premier League (FAPL) case, she says that “To be so classified, the subject-matter concerned would have to be original in the sense that it is its author’s own intellectual creation. Here, the question was about sporting events, like matches. She considered that football matches are subject to rules of the game. They leave no room for creative freedom for the purposes of copyright. In this case, obviously, there is some part of creativity, but we also have to respect some rules, like the proportion of the ingredients, the fact that we have to use good, not expired ingredients and so on.

2. Originality:

Copyright can protect something that is not new (unlike patent and design). The condition of protection is originality. We can consider that the originality results from choices that the author of the word made. By creating his work, the author makes a lot of decisions and choices. These choices are making the originality of the work and they bring to the work the personal touch of the author (CJEU, 1 December 2011, Painer). But in this case, the product is a cheese and we are talking about the recipe of this cheese. We have to analyse if the originality of the cheese’s recipe is enough to obtain a copyright protection. It is not the case with Levola’s Cheese. Even in front of the District Court of Gelderland, they failed with describing elements that could be considered as original enough to grant a copyright protection. They could not guarantee that everything was its author creation, that he made everything on his own, without relying on anything that already exist.

3. Distinction between form and idea:

Copyright excludes the idea. According to the art. 9.2 TRIPs “Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such”. A taste protection would be contrary to this provision. We should not protect “ideas underlying an element of work”. And we can consider that a taste is an idea, not a work. A work would be a recipe or the list of ingredients, which specifically describe how to make a product; or the product itself, for example its particular shape, colour and presentation. Both of them could be protected, but we cannot grant this protection to a taste, which is very subjective. That shows why a taste shouldn’t be protected. A taste is something too much subjective, it differs from a logo for example, because a logo is less questionable. When different people are watching a logo, they are seeing the same thing, the same forms, the same colours.

4. Stability of form of protection:

For this point, we can ask ourselves one question: How to prove that there is an infringement? In other terms, how can you say that somebody copied the taste of your product? It is difficult, and almost impossible. Of course, you can rely on the ingredients that were used, but even if they are quite similar, proportions may always differ. More even, as we already said, taste is an individual experience. Maybe according to you, two things will taste the same way, but not for anyone else. Tastes may change in time, so it will be difficult to consider if there is copying or not. For example, at the beginning, you are not going to think that it tastes the same way, but then, 10 years later, you will change your mind because of the circumstances. In this case, it is impossible to grant a stability of the form of protection.

5. Criteria for copyright infringement:

We examine a possible infringement, by looking if there are some similarities. Judges will pay attention to similarities, differences don’t matter. Here, it appears that cheeses taste very similar. But, we can go further, we should not stop at this point. It would be interesting to examine both recipes, to see which ingredients were used for both products. How can we speak about copying if it appears that ingredients are not the same at all, or that there were added in different proportions? If there are substantial similarities, there is a presumption of copying. But, there also is a reversed burden of proof: The defendant has to prove that he didn’t copy. As we already said, he can do that by showing his recipe and ingredients that were used. In this case, we have to prove that a taste has been copied? How do you prove that? The defendant, so our company, can take both cheeses and suggest to some individuals to taste them. Then, they will be able to conclude if they taste the same or don’t.

6. Comparison between copyright and trademark protection of tastes:

For trademark, it should be distinctive. Trademark protects only something that distinguish the product from another product. In this case the Levola’s cheese can’t be protected by a trademark. Like the EUCJ said in the Sieckmann v. DPMA case, a lack of visual perceptibility is not a valid ground to reject a protection. But, we should respect some conditions: the trademark must be presented in a manner that is “clear, precise, easily accessible, intelligible, durable and objective”. In this case the recipe of the cheese is not enough to have a trademark. The condition of the protection is distinctiveness. A trademark which are devoid of any distinctive character can’t be register as a trademark according to the article 7 CTMR and the article 3 of the directive

It is also interesting to examine if in this case we have a wilful intention. Is there really an intention to copy? Did the copier knew that he copied someone’s work? There is no wilful intention in this case.

The defendant, Smilde Foods didn’t copy the Heks’nkaas cheese. When Smilde Foods product the Witte Wievenkaas (white women’s cheese), he just makes a cheese. We can’t consider that he was copying the Heks’nkaas cheese, because the Heks’nkaas cheese’s recipe is not original enough to be protected. It’s too easy to say that if another company product a cheese, that she is copying.

For example, in the case la Mer du nord CA Brussels, 27/04/2007, there is an infringement because the similarity of the company’s logo creates a confusion. And the confusion is an important element for trademark.

In this case, even if we admit that the tastes are similar, that wouldn’t make a confusion for people, because the cheese’s identity isn’t composed with just a taste, there’s a lot of others elements which are making the identity of the cheese. There’s the box which contains the cheese, the name of the cheese, the logo of the company and so on. The fact that another company has a similar taste, doesn’t threaten Levola’s cheese, and Levola’s business.

7. Other considerations:

At the end, we would also like to discuss the difficulty of the system to take account the realities that are not perceived by sight or by hearing. If you think about it, a taste is something uncertain, because it differs from one person to another. Its character is very subjective. Even one person can feel a taste differently, for example, when she is sick. More even, taste can vary depending on the temperature, the place of detention, its durability and so on. Protecting a logo for example is really different from protecting a taste. It easier to protect a logo than protect a taste because a logo is less subjective than a taste.

Grant this protection would have many long-term effects. Among all kind of consequences, we can especially think about a creative “stop”, a stagnation. How can you invent a new product, if to do so, you are relying on something that already exist? You can add some dye or sugar, try all sorts of spices of sauces. Creators will be less likely to experiment and try new combinations, because they will be too afraid of the risks of a possible infringement, or sanction. So, this may affect negatively free competition.

Furthermore, such protection would be granted under European Law. This may be very difficult considering the fact that there is no harmonization between the different member states. There hasn’t been a lot of decisions involving taste, but we can transpose the reasoning of the Court in cases involving scent, because it also is subjective. Dutch Supreme Court considers that scent may be protected by copyright. She decided it in the Kekofa BV v. Lancome case (2006). But France has not the same point of view. On 10th Dec. 2013, the Supreme Court rejected the protection of scents. Because of these differences, it would be very difficult to grant this protection.

In another way of thinking, it’s possible to say that protecting a taste goes too far, because protecting a taste involves that the first company (in this case, Levola) will have a monopoly. That involves that nobody else could produce a garlic cheese. In some cases, having a protection under a product, like a copyright in example, can lead to a monopoly. In this case it would be the case, if Levola wins the trial. In this case, apply a copyright to tastes, would lead to an unfair competition between companies.

Another thing is that copyright protects original creations. In this case, we are talking about a cheese’s taste. Can we really consider that Levola’s cheese is an original creation? It’s obvious that cheeses with garlic will always have similar tastes, even if apart from the cheese and the garlic, the ingredients aren’t the same.

We can also say that in this case, there’s no wilful intention, there’s no willingness to copy in the head of Witte Wievenkaas. The similarity is resulting from cheese and garlic mixture and it’s not the fact of adding some others ingredients or not. An essential condition with copyright is the originality but in this case the originality doesn’t result of the fact of making a mixt with cheese and garlic. Levola isn’t probably the only company which is producing a cheese with a taste like that.

In conclusion, not only there was no infringement in this case, but we cannot either consider that taste may be protected by copyright.

BOGUCKA EWA
CZAPSKA PATRYCJA