be a production in a literary, scientific or artistic domain, usually implying some identifiable expression) and the idea-expression dichotomy principle.65 The outcome aligns with the notion that copyright subsists in expressive creations – texts, images, sounds, etc. – and not in the subjective realm of tastes or smells, which lack a defined form. Commentators have noted that this prerequisite implicitly favours a fixation requirement for the sake of legal certainty.66 One further implication of Levola Hengelo is that it forecloses, for now, any attempt to copyright not just the taste of a food, but also various scent compositions of food or other products. Though the case was about taste, the Court’s rationale was general: any subject matter that cannot be identified with objective precision cannot qualify as a protectable work. A cheese’s scent, like its flavour, would vary in perception and cannot be precisely captured in an “expression” (a food product’s recipe or list of ingredients is different from the olfactory sensation it produces). It follows that, under EU law, one cannot claim copyright in a fragrance’s smell any more than in a flavour. 3.2. Prior National Approaches Before Levola Hengelo, Member States’ courts had grappled with whether scents or tastes could be copyrighted, reaching contradictory conclusions. In 2006, the highest courts of the Netherlands and France, just days apart, issued diametrically opposed rulings on the copyrightability of perfume fragrances. The Dutch Hoge Raad, in a case involving Lancôme’s “Trésor” perfume, held that a perfume’s scent can, in principle, be protected by copyright if it is original.67 The Dutch court reasoned that their national law did not limit protectable subject matter and that anything perceptible to the senses and original could qualify. They drew an analogy: the scent of a perfume was like the content of a book, whereas the liquid mixture (the chemical formula) was like the paper; thus, the intangible scent was the creative “work”, distinct from its physical medium.68 On the other hand, the French Cour de Cassation held in a case about Dior’s “Dune” fragrance that a perfume’s scent was not a work of the mind but the result of mere 65 ibid; Silva (n 52) 146. 66 Synodinou (n 47) 16; Caterina Sganga, ‘The Notion of “Work” in EU Copyright Law after Levola Hengelo: One Answer given, Three Question Marks Ahead’ (2019) 41 European Intellectual Property Review 415. 67 Kamiel Koelman, ‘Copyright in the Courts: Perfume as Artistic Expression?’ (WIPO Magazine, 5 September 2006) <https://www.wipo.int/web/wipo-magazine/articles/copyright-in-the-courts-perfume-as-artisticexpression-35390> accessed 28 April 2025; Herman Cohen Jehoram, ‘The Dutch Supreme Court Recognises Copyright in the Scent of a Perfume. The Flying Dutchman: All Sails, No Anchor’ (2006) 28 European Intellectual Property Review 629. 68 Koelman (n 67). 283 TRADEMARK AND COPYRIGHT PROTECTION FOR SCENT AND FLAVOUR OF FOOD PRODUCTS
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