Derechos de autor en los alimentos

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In its judgment of November 13, 2018, the Court of Justice of the European Union (CJEU) ruled on the protection of flavor in food by copyright. The judgment was given in case C-310/15, Levola Hengelo, which we had already reported in this blog, based on the request for a preliminary ruling by the Dutch national court on the possibility of a flavor of food, in this case a cheese, being protected by copyright.

The case arose when the company Levola filed a lawsuit against Smilde for allegedly violating Levola’s copyright on the flavor of a cream cheese made from fresh cream and fines herbes, when Smilde produced a cheese with the same flavor.

In its ruling, the CJEU reiterated that the concept of a work is interpreted autonomously and homogeneously throughout the EU. Therefore, the flavor can only be protected by copyright if it can be classified as a work in line with Directive 2001/29.

In accordance with case law, the meaning of the mentioned directive has two cumulative requirements for an object to be classified as a work:

  1. a) The object must be original in that it must constitute an intellectual creation by its author.
  2. b) The classification as a work is reserved for elements that express this intellectual creation.

Also, in line with the CJEU’s case law, the concept of a work involves the object of the copyright protection being identified precisely and objectively, even if it is not permanent. This guarantees that the authorities overseeing the protection of exclusive rights clearly and precisely identify the object that is subject to protection.

The CJEU considers that a food flavor cannot be identified precisely and objectively, as it is based on tasting sensations and experiences that, depending on the person tasting the food, are determined by subjective, variable factors and, therefore, it cannot be classified as a work in line with Directive 2001/29.

Therefore, the CJEU concludes that Directive 2001/29 “is opposed to the flavor of a food being protected by copyright under this Directive and to a national regulation being interpreted in such a manner that copyright protection is given to this flavor.” It thus shares the advocate general’s conclusions, including the aspect that there are no techniques at present that allow the flavor of a product to be distinguished from that of other similar products. The advocate general added that this does not mean that these techniques may not exist in the future, in which case the legislator could intervene to make the appropriate regulatory changes. However, the CJEU has not ruled on this aspect.

 

Author: Alicia Costas

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