Referral C-310/17 (Levola Hengelo, 29 May 2017)
1. (a) Does Union law preclude the taste of a food product — as the own intellectual creation of the author — being granted copyright protection? In particular:
(b) Is copyright protection precluded by the fact that the expression ‘literary and artistic works’ in Article 2(1) of the Berne Convention, which is binding on all the Member States of the European Union, includes ‘every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression’, but that the examples cited in that provision only relate to creations which can be perceived by sight and/or by hearing?
(c) Does the (possible) instability of a food product and/or the subjective nature of the taste experience preclude the taste of a food product being eligible for copyright protection?
(d) Does the system of exclusive rights and restrictions, as governed by Articles 2 to 5 of Directive 2001/29/EC, preclude the copyright protection of the taste of a food product?
2. If the answer to question 1(a) is in the negative:
(a) What are the requirements for the copyright protection of the taste of a food product?
(b) Is the copyright protection of a taste based solely on the taste as such or
(also) on the recipe of the food product?
(c) What evidence should a party who, in infringement proceedings, claims to have created a copyright-protected taste of a food product, put forward? Is it sufficient for that party to present the food product involved in the proceedings to the court so that the court, by tasting and smelling, can form its own opinion as to whether the taste of the food product meets the requirements for copyright protection? Or should the applicant (also) provide a description of the creative choices involved in the taste composition and/or the recipe on the basis of which the taste can be considered to be the author’s own intellectual creation?
(d) How should the court in infringement proceedings determine whether the taste of the defendant’s food product corresponds to such an extent with the taste of the applicant’s food product that it constitutes an infringement of copyright? Is the decisive factor here that the overall impressions of the two tastes are the same?
Case details on the CJEU website (external link)