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Certain flavours may be protected by copyright, as evidenced by a court ruling in The Hague on 13 January 2015.

In this case, Levola Hengelo BV, producer of Heksenkaas (“witch cheese”), requested permission from the court to impose a seizure of evidence. European Food Company BV produces Magic Cheese, which Levola claims tastes so similar to Heksenkaas that it infringes on copyright.

Although it involves an ex parte procedure (the counterparty is not involved in the proceedings), the court is setting an important precedent. Referencing an older ruling by the Supreme Court (Lancôme/Kecofa), the court considers it sufficiently plausible that a flavour can be copyrighted.

The Supreme Court’s ruling on the Lancôme/Kecofa case in 2006 illustrates that a work, the copyrighted object of protection, should be interpreted broadly. A scent is eligible for copyright protection. This is the first ruling regarding copyright on flavour, making this a remarkable decision.

However, a flavour must meet all requirements before it can be protected by copyright. It must be an original flavour (not a derivative work) and bear the personal mark of its creator (designed by creative choices). The trend in case law is that it is not hard for something to be considered a work. That now also appears to be the case for flavour.

Levola sent samples of both Heksenkaas and Magic Cheese to the court. After sampling, the court concluded provisionally that copyright infringement of the flavour of Heksenkaas had been sufficiently demonstrated, and the request for seizure of evidence was thereby granted.

If you have any questions about copyright protection of a work in any form, please contact the International Desk for a referral to one of our IP-specialists!