A-G CJEU: taste does not constitute a work

Print this page 25-07-2018
(Courtesy of Tobias Cohen Jehoram and Syb Terpstra,, De Brauw Blackstone Westbroek)

Case C-310/17: Levola v Smilde. Opinion A-G Wathelet.


The court of appeal Arnhem-Leeuwarden (Dutch court) has referred two questions to the Court of Justice for preliminary ruling about the possibility to copyright the taste of a food product. A-G Wathelet considers that in view of the current state of the art, the precise and objective identification of a taste or smell is currently impossible. Event though the identification of a taste is subjective, the possibility to with sufficient precision and objectivity identify a work and consequently the extent of its protection by copyright is imperative in order to respect the principle of legal certainty. Therefore, Wathelet opines that the taste of a food product does not constitute a "work" according to the Copyright Directive and concludes that the Copyright Directive precludes copyright protection of the taste of a product.


You can find the opinion here (currently not available in English)