Levola/Smilde: copyright on taste or scent? Not according to Advocate General

Yesterday the Advocate General of ECJ launched his opinion in the Levola/Smilde case. Especially for the Dutch IP practice this is a judgment that we are all waiting for.

In short, the facts come down to the following. Levola claims copyright on the taste of ‘Heksenkaas’, a kind of cheese spread with herbs. Smilde produces a similar cheese spread under the name ‘Witte Wievenkaas’. Besides the similarity of the products, the parties argue over the question whether Witte Wieven is considered to be an synonym for Heks, witch.

The Dutch court posed preliminary questions to the ECJ which basically come down to the question whether it is possible to claim copyright on a taste.

According to the AG, the answer is NO. A taste may not considered to be a work in the meaning of the Dutch copyright act, InfoSoc Directive or even the Berner Convention. Since taste can only be subjectively interpreted, the AG is of the opinion that a taste cannot be fixed and therefore, by lack of a technique to capture a taste, cannot be regarded to constitute a work. At the current state of the technique it is simply not possible to make a clear, accurate and accessible description of a taste. Also taste might even change over time, and is also subject to several other subjective aspects. The mere fact that the taste might be the product of creating activities, is insufficient to draw the conclusion that a work has been created.

Although this opinion was to be expected, the opinion is also very interesting because of the question whether it is possible to claim copyright on a specific scent. In The Netherlands this is possible since the Dutch supreme court ruled in 2006 that Lancôme could claim copyright on its perfume. The French cour the cassation however ruled in 2013 that a scent cannot be regarded to be a work. With this opinion and following the same line of argumentation as in the case of taste, a scent is not a work according to the AG. Therefore taste nor scent are subject to copyright.

This opinion not only answers the Dutch court’ questions on taste, but also shakes up the Dutch Supreme courts’ case law on scents. Will the ECJ rule on both topics as well? Or will only the preliminary questions regarding taste be answered? We will have to wait and see.

If you have any questions regarding this article of copyright regulations in general? Please feel free to contact our team Intellectual Property

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