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Copyright on taste?

Copyright on taste?

Copyright gives companies the ability to act against unwanted copies of their creation. In most cases these are traditional creations such as books, movies or music. It does entail a lot more than that, though. Our High Court decided that scent of perfumes may have a copyright as well. Now there is a comparable case regarding the taste of HEKS’NKAAS, a cheese spread.

HEKS’NKAAS was created in 2007 by an amateur chef. The product proved to be very successful. In 2013 it was for sale in all the major supermarkets in the Netherlands. A competitor suddenly introduced Magic Cheese, which tastes the same. HEKS’NKAAS acts against this product claiming it infringes its copyright. The court rules in favor of HEKS’NKAAS and claims that taste can indeed be subject to copyright. Determining factors are whether 1. The creation is open to human perception and 2. That the creation is original and has a personal touch by its maker.


HEKS’NKAAS certainly has that last requirement, since the creator had to make certain decisions out of possible ingredients to come to the taste of the product. The product has a unique taste and cannot be confused with other cheese spreads. The case therefore centers around the question of whether or not the taste of the products is open for human perception. The spread is unique in its taste and not based on any existing product. The case further focuses on the question what constitutes the taste of a product and how this is perceived by the consumer. The ingredients themselves are not more than a guideline. Only by actually tasting the product can it be established. An expert is called upon to taste and compare both products. His conclusion is that MAGIC CHEESE is a one-on-one copy. For the court this is more than enough. Taste (in this case the taste of HEKS’NKAAS) may be protected through copyright. Magic Cheese’s product is very similar. The producer of HEKS’NKAAS may therefore confiscate all of Magic Cheese’s products to prevent the inventory from suddenly disappearing. To be continued.

 

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Puma is one of the bigger sports and lifestyle brands in the world. The core-business is the design, development and sale of (sports) shoes, (sports) clothing and accessories. In 1960, Puma registered an international trademark for a device designed in 1958: the formstrip. Since then, Puma has registered approximately 90 formstrip trademarks with validity in the Benelux or the European Union. Puma claims that this is a serial mark. Monshoe is a wholesaler of women's shoes and related products. The company designs and develops Monshoe shoes which it largely markets itself. Monshoe sells its women's shoes under the brands Shoecolate and Pearlz. The shoe Shoecolate is offered in various colour combinations. Puma claims that Monshoe infringes its well-known formstrip trademark. Monshoe contradicts this and states that the average consumer will not perceive the device of Monshoe on the sneakers as a trademark. And if the public will recognize a trademark in the decoration, it will not make the connection to Puma. According to Monshoe, the formstrip logo is not a well-known trademark within the meaning of the BVIE and the UMVo. There is no likelihood of confusion because the sign does not or hardly evoke any association with Puma among the public. In light of the above, who is right? Does this constitute decorative use or linking to a well-known trademark?
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