I know what I like and I know when I taste it. Cheese flavour cannot be “copyrighted” (nor registered as a trademark)

Sara Parrello and Fabio AngeliniIn law, perhaps one of the most famous aphorisms is “I know it when I see it”, which Justice Potter Stewart used to describe his threshold test for obscenity (in Jacobellis v. Ohio,  378 U.S. 184 (1964)). The CJEU, in case C‑310/17, delivered a decision on copyright which in a way confirms this aphorism and might have serious consequences for trademarks. Levola Hengelo BV, which manufactured a cream cheese with fresh herbs called Heksenkaas (“witch’s cheese”) sued Smilde Foods BV, over an analogous product called ‘Witte Wievenkaas’, alleging that such product infringed its copyright “in the taste” of Heksenkaas. Although in the past the Dutch Supreme Court had recognized copyright protection to a perfume (cf. Dutch Supreme Court, June 16,  2006 on the perfume Trésor of Lancôme), the Regional Court of Appeal, Arnhem-Leeuwarden, Netherlands, confronted with the…

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