From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Thursday, 11 June 2015

A taste of things to come? Dutch court rejects sensory copyright claim

You really wouldn't
want to be eating this
In "Scents and sensibilities: how far can copyright stretch?" the IPKat reported briefly on a joint seminar which he shared with the British Literary and Artistic Copyright Association (BLACA) earlier this year in the lovely London offices of Reed Smith. The subject of the seminar was the possibility of protecting smells, tastes and other sensory items under the law of copyright. Our own Eleonora Rosati argued in favour of protection, citing the generously open phraseology of recent Court of Justice rulings; leading Dutch practitioner and scholar Tobias Cohen Jehoram opposed, appealing to reason, common sense and his father's dictum that the famous rule in the Dutch case of Kecofa v Lancôme was "all sails, no anchor".
Following our BLACA session, you will be interested to learn that the Gelderland District Court yesterday rejected all claims of Levola, producer of the (in)famous Heks'nkaas product. I attach the decision [in Dutch, of course, here], unfortunately I do not have a translation for you, nor a Word document (the courts nowadays refuse to send decisions by mail or fax them; this is why we had to await the old-fashioned mail this morning to learn of the decision).

In short, the court accepts Royal Smilde's argument that, in a case like this, it is up to the plaintiff to define what exactly the alleged copyright protected work consists of, which Levola was unable to do. Its own expert was vague on the issue, and Levola wanted the court to define the work after tasting it for itself. The court refused to do this, also accepting our argument that different people taste different things, and that the taste of a product differs according to its temperature, age of product, exposure to air and other factors.

For this reason the court did not have to decide on our secondary argument that there is no copyright protection in taste -- but the court does emphasise that it is far from likely that such protection even exists.

We don't know if Levola is going to appeal this; so far they have been silent.
Ten Worst Foods in the World here
10 More Utterly Disgusting Foods here
It's a Fork-Off: Tasting the World's Foulest Foods here


The Cat that Walks by Himself said...

> The court refused to do this, also accepting our argument that different people taste different things

In consideration 4.4, the Court was ready to accept a copyright for a taste as long as it would have been defined with required distinctiveness.

Levola could have set off from a source of the taste as a definition of the taste and not from a perception of the taste. Perception indeed might be different while the source of the taste is unique.

Anonymous said...

But copyright only protects the perception, not the source of the perception.

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