Convention48 nor the EU copyright directives (such as the InfoSoc Directive49 or the Directive on Copyright in the Digital Single Market50) define the work exhaustively by categories.51 Thus, the notion was understood differently in common law and droit d’auteur systems of Member States until the CJEU set about to harmonise the term.52 In Infopaq,53 the CJEU held that the notion of work is an autonomous concept of EU law, which is to be given an autonomous and uniform interpretation throughout the EU. The CJEU case law has established that a work must be original in the sense that it is the author’s own intellectual creation, reflecting the author’s personality and expressing their free and creative choices in the production.54 The question of whether something as fleeting and subjective as a taste could qualify as a protectable work came to a head in the CJEU’s ruling in Levola Hengelo55 in 2018. Levola – a Dutch producer of a cream cheese spread – claimed that the specific taste of its product (marketed as “Heksenkaas”) was an original creation embodying creative choices (e.g. a unique recipe of herbs and flavourings), and that a rival’s cheese spread copied that taste, thus infringing Levola’s copyright. The Dutch court referred to the CJEU the fundamental question of whether the taste of a food product is protected under EU copyright law. The CJEU’s answer was unequivocal: the taste of a food product cannot be classified as a “work” and thus is not protectable by copyright.56 Bonadio and Caterina Sganga (eds), A Research Agenda for EU Copyright Law (Edward Elgar Publishing Limited 2025) 7. 48 Berne Convention for the Protection of Literary and Artistic Works, adopted September 9, 1886; last amended September 28, 1979. 49 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ L 167, 22.6.2001, p. 10–19. 50 Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC, OJ L 130, 17.5.2019, p. 92–125. 51 Berne Convention lists examples of literary and artistic works in Art. 2(1), which does not expressly include culinary or olfactory creations. Estelle Derclaye, ‘Right and Wrong Analogies: The CJEU’s Use of Trade Mark Concepts in Copyright and Design Law’ (2020) 42 European Intellectual Property Review 78, 82; Fabris (n 2) 706. 52 Nuno Sousa E Silva, ‘The Boundaries of EU Copyright Law: Cheese, Jeans and a Military Report in the Court of Justice’ [2019] Market and Competition Law Review 133, 134–135. 53 CJEU judgment of 16 July 2009, Infopaq, C-5/08, ECLI:EU:C:2009:465. 54 Infopaq, para. 35. CJEU judgment of 1 December 2011, Painer, C-145/10, ECLI:EU:C:2011:798, para. 94. Justine Pila, ‘Authorial Works Protectable by Copyright’ in Eleonora Rosati (ed), The Routledge handbook of EU copyright law (Routledge 2021) 65. Synodinou (n 47) 9–10. 55 CJEU judgment of 13 November 2018, Levola Hengelo, C-310/17, ECLI:EU:C:2018:899. 56 Sara Parrello and Fabio Angelini, ‘I Know What I like and I Know When I Taste It. Cheese Flavour Cannot Be “Copyrighted” (nor Registered as a Trademark)’ (Kluwer Copyright Blog Facebook X LinkedIn YouTube, 13 December 2018) <https://copyrightblog.kluweriplaw.com/2018/12/13/i-know-what-i-like-and-i-know-when-i-taste-it-cheese-flavourcannot-be-copyrighted-nor-registered-as-a-trademark> accessed 28 April 2025. 281 TRADEMARK AND COPYRIGHT PROTECTION FOR SCENT AND FLAVOUR OF FOOD PRODUCTS
RkJQdWJsaXNoZXIy MTE4NzM5Nw==