[Editor's note] Like most countries and regions in the world, The rulings of the Court of Justice of the European Union have important guiding significance and predictive value for understanding the legal norms of the European Union. Esabaril (ELZABURU) At the beginning of each year, typical cases of the Court of Justice of the European Union in the previous year are summarized and published, And a brief review of each case, In order to help customers and partners to understand the EU intellectual property norms. Given the importance of Chinese customers and partners, We try to publish the Chinese version of typical cases on a weekly basis, It is convenient for Chinese partners to learn the latest information in a timely manner. 　　

[background] 　　The dispute in this case involves copyright infringement of the taste of a food. A Dutch businessman developed a product called "Heksenkaas" Cheese products—— "A spreadable cheese dip with cream cheese and fresh herbs" , And will the product "works" The relevant intellectual property rights are transferred to Levola Hengelo BV company (Hereinafter referred to as "Levola" ) . The recipe for this cheese product is already available 2012 The year of patent protection.

　　2012 years 7 month, Levola An infringement action was filed with the District Court of Helderland in the Netherlands, charge Smilde Foods BV company (Hereinafter referred to as "Smilde" ) Production and sale of a cheese product "Witte Wievenkaas" plagiarism "Heksenkaas" taste. Mentioned in the indictment, The flavor of Plaintiff's cheese products belongs to "Dutch copyright law" Article 1 "works" category, Shall be protected by copyright law.

　　Here's the surprise, The court dismissed the plaintiff's claim, The reason given for the dismissal is simply, The prosecutor failed to specify the composition "Heksenkaas" cheese "unique, Originality and individuality" An element or combination of elements, And whether the taste of food belongs to the copyright law "works" category, Not a word.

　　In fact, At issue in this case is whether food taste can claim copyright protection. The two sides of the dispute have diametrically opposed views on this issue:

　　Levola (plaintiff) Think that:

　　- What is the copyright on a flavor "The general impression of taste caused by the consumption of a particular food, Including tactile sensations through the mouth" .

　　- The taste of food belongs to literature which meets the requirements of copyright protection, Scientific and artistic works.

　　Smilde (defendant) On the contrary:

　　- The copyright system protects only audiovisual works, Taste is not protected.

　　- The instability of food, And the subjective characteristics of taste perception, Determines that the taste of food does not qualify for copyright protection.

　　Levola reference 2006 The Supreme Court of the Netherlands v Lanc? me The verdict of the case, The ruling held that the smell of perfume was copyrighted.

　　but, The case is submitted by the court of Admissibility, Supreme Court of France 2013 A 2005 ruling rejected the claim to copyright the fragrance.

　　In light of the conflict between the conclusions of the judges on similar issues, The Court of Appeal decided to stay the proceedings, Appeal to the European Court of Justice (Court of Justice) Clarify whether food taste can claim copyright protection. 　　

[conclusion] 　　European Court of Justice 2018 years 11 month 13 Japanese pair "Directive of the European Parliament and of the Council on the harmonization of the partial provisions on copyright and related rights in the information society (The first 2001/29/EC No) " (Hereinafter referred to as "European Union regulation 2001/29/EC Number instruction" ) Should be understood as, Copyright protection of food taste is prohibited, The law of member countries is forbidden to interpret taste as protected by copyright law, Make a ruling.

　　Procedural problem

　　The defendant proposed, Due to the plaintiff Levola Fail to specify "Heksenkaas" Cheese satisfaction "The author's independent intelligence creates results" Required element, The European Court of Justice should therefore dismiss the case.

　　For that matter, The European Court of Justice refers to prior precedents, Point out:

　　- On one hand, It is up to the receiving court to judge the circumstances of the case, Decide whether the European Court of Justice needs to make a preliminary ruling on the specific issue, To guide the admissible court in its decision. Generally speaking, Legal questions concerning preliminary decisions requested by the courts of member States, Presumed correlation.

　　- On the other hand, Is the European Court of Justice obliged to rule on questions raised about how to interpret EU law.

　　Entity problem

　　plaintiff Levola Think that "Dutch copyright law" The first 1 Article to clause 10 The provisions of this Article shall be understood as, Taste is protected by copyright law.

　　The European Court of Justice stated that in the field of the European Union "works" The definition and scope of, "European Union regulation 2001/29/EC Number instruction" There is no requirement to refer to the laws of member states. The article only provides that: (1) The author's work on it "works" Enjoy a series of exclusive rights (The first 2 Article to clause 4 article) ; and (2) The first 5 The article lists the exceptions and limitations to the protection of the author's rights.

　　The European Court of Justice held that in the absence of guidelines for the directive itself, To ensure independent and unified understanding in all areas of the European Union, "works" The following conditions should be met:

　　- It must be the intellectual product of the author's own independent creation; and,

　　- As described in this directive "works" Refers to, The elements that constitute the expression of the fruits of intellectual creation.

　　From the perspective of international law, European court of justice "World Intellectual Property Organization copyright Convention (WCT) " The first 1 (4) article, reference "Berne Convention for the Protection of Literary and Artistic Works" The first 2 (1) Provision of article—— "Literary and artistic works" The term includes literature, All achievements in the fields of science and art, Regardless of its form or mode of expression; and "World Intellectual Property Organization copyright Convention" The first 2 Bar sum "Agreement on Trade-Related Aspects of Intellectual Property Rights" The first 9 (2) Provision of article——Copyright protection extends to expression, It does not extend to thought, process, The method of operation or mathematical concept itself.

　　The European Court of Justice held that, For the purpose of ensuring copyright protection by competent authorities and individuals (Especially economic operators) Certainty in the understanding of law, The objective existence of the work must first be determined. That's why the European Court of Justice emphasized "Although the form of expression may change, It must be identified precisely and objectively" specific "works" , It must not contain any subjective elements.

　　The European Court of Justice holds that different people's ages, Subjective factors such as food preferences and consumption habits, And the environment and places where the products are consumed, Can affect how certain foods taste, Therefore, it is impossible to objectively determine the taste of a food.

　　European court of justice ruling, Because food taste is based on personal taste perception and experience, It's subjective and variable, Therefore, Do not constitute "European Union regulation 2001/29/EC Number instruction" defined "works" .

　　similarly, For unity within the European Union "works" definition, European court of justice ruling, Member States cannot interpret their domestic laws as, Food taste can be protected by copyright. 　　

[comment] 　　The European Court of Justice "European Union regulation 2001/29/EC Number instruction" The explanation can be roughly summarized as follows: In view of the current food taste can only be based on the individual taste of the food to determine the subjective feelings, Therefore do not have "works" Required accuracy and objectivity.

　　but, The European Court of Justice also noted, This conclusion is based on the current state of scientific development. Considering the speed of technological development, The court agreed with the presiding officer in the case (Advocate General) Wathelet opinion, That is, in the future, when science and technology can be developed to objectively and accurately distinguish different tastes, Legislators are advised to adjust existing legal provisions.

　　compile: Liu Dan, Esabarry Legal Counsel　　source: Esabaril (ELZABURU) Intellectual property rights