The scent and the taste of copyright law

Pecunia non olet or the proof of (copyright protection of) the pudding is not in the eating

It seems like a long time ago, when in 2006 the Dutch Supreme Court came to a decision on the issue if “scents” can be protected under copyright law. In this Lancôme v Kecofa judgment came to the conclusion, that under Dutch copyright law with its open and non-exhaustive description of the types of works, a scent can be a work protected by copyright. A scent, according to the Dutch Supreme Court, is a product susceptible to human perception. It is capable of having its own and original character and it it is also capable of carrying the personal mark of its author/creator. The scent itself the subject of the copyright protection. Therefore not the recipe or the substances.

In France some lower courts had granted copyright protection to perfumes before June 2006. However the French Cassation Court in June 6, 2006, (only days before the Lancome vs Kecofa judgment) came to the conclusion a ‘nose’ could not be considered as an author under French copyright law. The French cassation court argued that “the fragrance of a perfume, which comes from the simple implementation of expertise, is not the creation of a from of expression that can benefit from the protection of works by copyright.”

The same French cassation court in a jugdment of December 2013 reaffirmed that perfuimes are not copyrightable under French copyright law. In this case a Frenchman at an open-air market in France sold counterfeited bottles of Trésor, a best-selling Lancôme perfume. Lancôme argued that the fragrance of a perfume is a “work of the mind” protectable under French copyright law. The argument was that a perfume is original, and thus protectable, because it shows the creative input of its author.

Again the French Cassation Court decided: Copyright protects creations in their tangible form, in as far as these are identified with sufficient precision to allow their communication. The fragrance of a perfume, which, apart from its development process, is not in itself a work of the mind. It does not have itself a form with the characteristic of a work of a mind. It cannot be protected by copyright.

Despite the outcome of these French judgments: Is it possible for scents or fragrances to be protected by (Dutch) copyright, as the Dutch Supreme Court held in 2006? The European Coirt of Justice (ECJ) will perhaps have the final word. (See for the ECJ’s harmonisation efforts the column in italic).

The Copyright Directive (Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society) had the objective. to harmonise certain aspects of copyright in the EU member states. Mostly this concerned aspects related to restrictions on copyright. The criteria for copyright protection of a work were not harmonised by the Copyright Directive. Those criteria varied from one member state to another member state, and remained to do so after the Copyright Directive came into force. But it turned out differently.

Although not harmonised by the Copyright Directive the European Court Justice (ECJ) nevertheless took the initative to start harmonising the criteria for copyright protection of a work. The ECJ did so in a number of judgments (Infopaq International of 16 July 2009; C-5/08, BSA of 22 December 2011; C-393/09, Football Association Premier League c.s. of 4 October 2011; C-403/08 and C-429/08)

The ECJ’s harmonised criteria for copyright protection and the treshold for a work to obtain copyright protection is: The copyright protection will apply only to a subject matter which is original in the sense that it is its author’s own intellectual creation. If a works consists of components which are differentiated only by their technical function or if works leave no room for creative freedom cannot be regarded as copyright protected Works.

If it is possible for scents to be protected by copyright, then why not taste? Two recent Dutch decisions on the copyright claims of the producer of the famous Heks’nkaas (“witches’ cheese”).

In 2012 the producer of Heks’nkaas requested an ex-parte order for protective measures from the District Court of The Hague. The Court granted a seizure of documents relating to the (alleged) infringing creation of the “Magic Cheese” product by a competitor. Taking the Dutch Supreme Court judgment in the Lancôme / Kecofa case as a starting point, the Court decided as a preliminary opinion that taste could also be protected under copyright law. After acyually having tasted both cheese products the District Court held: The taste of Heks’nkaas would fulfil the criteria for copyright protection and would meet the treshold of original character and of the taste carrying the personal mark of its author/creator.

In 2015 the same producer of Heks’nkaas inititated court proceedings against another producer of cheese; this time before the District Court of Gelderland.
In this case the Court assumed the possibility of copyright protection for taste. However the producer of Heks’nkaas was held to be under the obligation to substantiate the elements of the taste of Heks’nkaas that could bering about the protection by copyright.

The producer of Heks’nkaas, as well as this producer’s expert witness failed in describing these specific elements sufficiently. The producer if Heks’nkaas furthermore argued that it was impossible to describe these elements; in other words one should experience the taste personnaly. However this court refused this argument and refused as well to taste Heks’nkaas and the alleged infringing cheese with the reasoning that it was up to the producer of Heks’nkaas to substantiate on which grounds Heks’nkaas deserved protection by copyright. More in general Court made some side-notes. It was pointed out that the taste of a product may vary with the age of the product, the air exposure of the product , the temperature, and also the subjectivity of how taste of such a product is experienced. Conclusion: copyright protection fo r the taste of Heks’nkaas was denied.

So possibly under Dutch copyright law there could be protection for taste, al least in theory. These Heks’nkaas cases show that it extremely difficult for a creator/author of a taste of a product to substantiate and to provide evidence of the elements that constitute originality and the elements that show the mark of the creator/author. Furthermore enforcement of such copyrighted taste against infringements shall be confronted with severe problems of a practical nature: Namely, how to give evidence of such infringement.

Hans Jonkhout

P.s. The producer of Hek’senkaas appealed. In its very recent judgment of 23 May 2017 the Dutch Court of Appeal was not ready to give a final answer to the question whether or not the “taste” of Hek’senkaas is protected under Dutch copyright law (or under EU-copyright law in as far as harmonized). In the judgment mentioned the Court of Appeal was of the opinion that prejudicial questions were to be answered by the European Court of Justice (ECJ). The most prominent question being of course: Is there any objection that the taste of a nutritional product – as an individual and intellectual creation of the author – is protected by copyright law? Ther is no alternative but to wait for the answer of the ECJ, that most probably will come with more clarity on the uncertain copyright protection of “scents”.