## Facts

- Levola Hengelo BV acquired rights connected to a spreadable cream-cheese dip marketed as “Heksenkaas.”
- Smilde Foods BV produced a competing cream-cheese product, “Witte Wievenkaas.”
- Levola claimed the competing product infringed copyright in the *taste* of Heksenkaas, arguing the taste was an original intellectual creation and therefore a protected “work.”
- A Dutch district court dismissed the claim, including on the ground that Levola had not identified protected elements of the alleged taste with sufficient specificity.
- On appeal, the Gerechtshof Arnhem-Leeuwarden referred questions to the Court of Justice of the European Union under Article 267 TFEU regarding whether the taste of a food product can qualify as a “work” under Directive 2001/29/EC.

## Issues

1. Whether the taste of a food product can be protected by copyright as a “work” within the meaning of Directive 2001/29/EC.

## Decision

- The Court of Justice (Grand Chamber) held that Directive 2001/29/EC precludes copyright protection for the taste of a food product.
- The Court ruled that the taste of a food product cannot be classified as a “work” under EU copyright law.
- The preliminary ruling required the Dutch appellate court to resolve the dispute consistently with this interpretation.

## Legal Principles

- The concept of a “work” under Directive 2001/29/EC is an autonomous, uniform EU-law concept.
- To qualify as a “work,” subject matter must (1) be original as the author’s own intellectual creation and (2) be an expression of that creation.
- A protectable work must be expressed so it is identifiable with sufficient precision and objectivity, supporting legal certainty and allowing rightsholders, authorities, and third parties to determine the scope of protection.
- The taste of a food product is based on sensory experiences that are subjective and variable across individuals and circumstances, and it lacks a technical means of objective, precise identification; therefore, it cannot meet the identifiability requirement for copyright protection.

## Conclusion

The court held that EU copyright law does not protect the taste of a food product because taste cannot be expressed in an objectively and precisely identifiable manner required for a “work” under Directive 2001/29/EC.


Levola Hengelo BV v. Smilde Foods BV, Case C-310/17 (C.J.E.U. 2018)