The idea-expression dichotomy underpins much of intellectual property law. It is most commonly associated with copyright (and heavily discussed in, for example, Baigent v Random House), but also supports the requirement in trademark law that a mark must be sufficiently clear, precise, self-contained, easily accessible, intelligible, durable and objective (the Sieckmann criteria, also set out at recital 10 to the EUTM Regulation).  Clearly defined expressions are protectable; ideas are not.

Sieckmann has underpinned a number of high-profile decisions in both EU and UK courts to deny (or withdraw) protection of non-traditional marks, for example in Scrabble tiles (whose shape, size and design were found to lack clarity in Spear v Zynga), Cadbury’s purple color (in which its application for Pantone 2685C being the predominant color on its product packaging was found insufficiently clear by the Court of Appeal), Red Bull’s two-color silver and blue mark (found not to clearly define the relationship of the colours and therefore be unregistrable), or the Sieckmann decision itself which found smells to be unregistrable.

The CJEU now appears to have carried the Sieckmann requirement for clarity into copyright law. Levola manufactures a spreadable cream-cheese dip, Heksenkaas. In January 2014, Smilde started to manufacture a similar product called Witte Wievenkaas. Levola claimed that Smilde’s product infringed copyright in the taste of Heksenkaas, and the Supreme Court of the Netherlands referred a number of questions to the CJEU. The key question was, in effect, whether the Copyright Directive precludes copyright from subsisting in taste.

Advocate General Wathelet, in his opinion, found that copyright should not subsist in taste. He suggested that the taste of a food constitutes an idea (rather than an expression, which would be the form in which a recipe was expressed) and is therefore not protectable. Furthermore, even if taste were an expression, on the basis of today’s technology taste and scent are not precisely or objectively identifiable (perhaps because a taste can only exist as it affects the taster); by reference to Sieckmann, he, therefore, ruled out protecting taste.

The judgment followed much of this logic, but focused almost exclusively on Sieckmann, stating that a work must be expressed in a manner making it identifiable with sufficient precision and objectivity, without ruling on whether taste is an idea or expression. The judgment states that “it is not possible in the current state of scientific development to achieve by technical means a precise and objective identification of the taste of a food product”. By focusing the practical (rather than legal) difficulties in protecting taste, the CJEU appears to have left the question open to being revisited as technology develops.

The decision that taste is not protectable by copyright is not unexpected. Whilst reliance on Sieckmann may (ironically) create a lack of clarity, not protecting something as intangible as taste appears sensible. Furthermore, and as suggested by the Advocate General, taste seems to be the effect of the work on its consumer (similar to emotion stemming from musical works), rather than the work itself.

Despite appearing sensible, some difficulties do arise out of the judgment, and its effects are hard to pinpoint. For example, by importing Sieckmann into copyright law, it may be taken to create a requirement of fixation (which is not required by the Copyright Directive) into EU copyright law. Furthermore, in relation to infringement, how can the substantial part of a taste or smell be defined? And would the fair dealing defenses, for instance, parody or quotation, be applicable to taste?

Prior to Levola, top courts in the EU were at odds regarding protecting scents and tastes (the Dutch courts appeared more open to it than the French courts, for instance). Now, however, the CJEU appears to have closed the door on such protection for the foreseeable future, and this is, therefore, a judgment which may make enforcement against taste-alikes and smell-alikes more tricky.

On the other hand, by preventing copyright from subsisting in taste, the CJEU has maintained clarity and prevented a situation in which large players in the food or drink industry could start trying to take others out of the market due to similarity in taste.

Food, drink, and perfume companies are not the only parties likely to be interested in this decision; new developments in other sectors, for instance, multi-sensory television and cinema, are likely to give rise to further consideration of the protection of taste and smell. It is unlikely that this is the last word on such protection.

Penned by Mark Nichols – Associate at Harbottle & Lewis LLP who specializes in intellectual property.

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