NEWS

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16-11-2018

 

Food product flavors are not copyrightable " oeuvres "

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In a judgment of November 13, 2018 (C-310/17), the Court of Justice of the European Union (hereinafter " CJUE ") considers that_cc781905 -5cde-3194-bb3b-136bad5cf58d_ the flavor of a food product cannot be qualified as " oeuvre " within the meaning of Directive 2001/29/ECdu May 22, 2001 on the harmonization of certain aspects of copyright and related rights in the information society, thus preventing its protection by copyright.

 

 

In this case, in 2007, a Dutch vegetable and fresh produce merchant created ' Heksenkaas ', a cheese spread with fresh cream and Herbs. This merchant has assigned his intellectual property rights to this product to Levola. 

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Since 2014, the Dutch company Smilde has been manufacturing a product called “ Witte Wievenkaas ” for a supermarket chain in the Netherlands.

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The Levola company has sued the Smilde company considering that the production and sale of " Witte Wievenkass " infringes the copyright it allegedly holds on the flavor from “ Heksenkaas ”. The Dutch Court of Appeal, seized of this dispute, questioned the CJEU in order to know whether the flavor of a food product could be protected by copyright under the 2001 directive.

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The CJEU first recalls that "  having regard to the requirements both of the uniform application of Union law and of the principle of equality " the notion of « oeuvre »autonomous and uniform interpretation ” (item 33)._cc781905-5cde-3194-bb3b-136bad5cf58d

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The Court then recalls that for a creation to qualify as a work, within the meaning of the 2001 directive, two cumulative conditions must be met. First of all, the creation must be original, that is to say that it must constitute " an intellectual creation specific to its author ". In addition, the qualification of work  “ is reserved for elements that are the expression of such intellectual creation_cc7581905 -3194-bb3b-136bad5cf58d_» (item 37).

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Furthermore, the CJEU specifies that, according to Article 9.2. of the Agreement on Trade-Related Aspects of Intellectual Property Rights, adopted within the framework of the World Trade Organization to which the European Union has acceded and Article 2 of the Treaty of the World Intellectual Property Organization intellectual property (WIPO) on copyright, only expressions can be protected by copyright and ideas, procedures, methods of operation or mathematical conceptions, as such ”.

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The CJEU further asserts that the notion of a work «  necessarily implies an expression of the subject matter of copyright protection which makes it identifiable with sufficient precision and objectivity, even if this expression is not permanent

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However, the Court considers that precise and objective identification is impossible concerning the flavor of a food product. 

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« The possibility of precise and objective identification is lacking with regard to the flavor of a food product »(item 42).

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During the debates before the Dutch courts, it was highlighted a divergence of interpretation of the concept of 136bad5cf58d_” between the Member States and more particularly concerning the possible protection by copyright of smells (by analogy with flavours). Indeed, while the case law of the Supreme Court of the Netherlands has recognized the possibility of protecting an odor by copyright, the Court of Cassation in France has categorically rejected the protection of an odor by copyright. author, in particular by a judgment of December 10, 2013. 

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However, as recalled by the CJEU, the notion of  “ oeuvre ” within the meaning of the 2001 directive is an autonomous and uniform notion in Union law, to be interpreted in the same way in all the States of the Union. 

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The CJEU which closes, with this judgment, any debate on the possible protection by copyright of creations perceptible only by the senses of taste, and by extension of smell, confirms the position of the Court of Cassation.

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The only protection of flavors and odors thus remains to this day the secret, pending future possible protection by trademark law.

 

CarolCouson-Warlop, Lawyer, ARTLEX, Nantes 

Morganblow, Lawyer, ARTLEX, Nantes 

 

#Literary and artist property, #intellectual property #copyright, #European law, #European Union, #ECJ, #Court of Justice of the European Union, #flavor, #odor, #perfume, #food product, # directive 2001/29/EC, #work, #trade secrets, #original, #jurisprudence, #monitoring

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Article published on the judicial informant of November 30, 2018https://judicialinformator.fr/journal-n6975/

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