This month we bring you the latest cases in the areas of Intellectual Property and Employment, including a copyright decision that the taste of a food product is not eligible for copyright protection as it cannot be classified as a ‘work’, a case on whether a town name can be trademarked, and a case addressing compensation in the case of termination.


 Judgment in Case C-310/17

Levola Hengelo BV v Smilde Foods BV

Judgment Date 13 November 2018

 The taste of a food product is not eligible for copyright protection as it cannot be classified as a ‘work’.

‘Heksenkaas’ is a cream cheese and fresh herb spread, which was created in 2007 by a Dutch retailer of vegetables and fresh produce. The intellectual property rights in that product were transferred by the retailer to the current rightholder, Levola, and the company is governed by Dutch law.

Since January 2014, Smilde, a company also governed by Dutch law, has been manufacturing a product called ‘Witte Wievenkaas’ for a supermarket chain in the Netherlands.

Levola took the view that the production and sale of ‘Witte Wievenkaas’ infringed its copyright in the taste of ‘Heksenkaas’, and asked the courts to order Smilde to cease production and sale of ‘Witte Wievenkaas’. Levola claimed that the taste of ‘Heksenkaas’ is a work protected by copyright and that the taste of ‘Witte Wievenkaas’ is a copy of that work.

Hearing the case on appeal, the Regional Court of Appeal in the Netherlands has asked the Court of Justice whether the taste of a food product can be protected under the Copyright Directive.

The Court ruled that in order to be protected by copyright under the Directive, the taste of a food product must be capable of being classified as a ‘work’ within the meaning of the Directive (there must be original intellectual creation and there must be an ‘expression’ of that original intellectual creation).

For there to be a ‘work’ as referred to in the Directive, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity. The Court found that the taste of a food product cannot be identified with precision and objectivity as the taste sensations and experiences of a food product are which are subjective and variable depending on who is doing the tasting.

Therefore, the Court concluded that the taste of a food product cannot be classified as a ‘work’ and is not eligible for copyright protection under the Directive.;jsessionid=D07A8819BC987F63FC68CD868942EE8F?text=&docid=207682&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=3338748


 Judgment in Case T-122/17

Devin v EUIPO

Judgment Date 25 October 2018

 Devin, the name of a Bulgarian town, can be registered as an EU trade mark for mineral water as the geographical name can be used not only as a description, e.g. for tourism, but also as a distinctive sign in cases of ‘due cause’ and where there is no likelihood of confusion.

The company Devin AD, obtained registration of the EU word mark DEVIN for non-alcoholic drinks in 2011. In 2014, Haskovo Chamber of Commerce and Industry in Bulgaria, filed an application with EUIPO for a declaration of invalidity of the contested mark.

The EUIPO found that the town of Devin in Bulgaria was known to the general public in Bulgaria and a significant proportion of consumers in neighbouring countries as a renowned spa town, and that the name of the town was linked with the designated goods covered by the contested mark, especially mineral waters. The EUIPO declared the mark invalid.

Devin AD brought an action before the General Court seeking annulment of the decision of EUIPO.

The General Court annulled the decision of EUIPO, on the grounds that, for the Bulgarian consumer, even if he recognises the word ‘devin’ as a geographical name, it would be unlikely that the trade mark DEVIN had not acquired a normal distinctive character, without there being any need to rule on its reputation.

The General Court noted that the EUIPO wrongly focussed on the possible confusion by foreign tourists who visit Devin and did not take into consideration the entire relevant public and considered that that the average consumer of mineral water in the EU does not have such a high degree of specialisation in geography or tourism to confuse the word ‘devin’ as a geographical place in Bulgaria.

The General Court concluded that the EUIPO had not established the existence of a sufficient degree of recognition of the town of Devin by the average EU consumer, in particular Greek or Romanian consumers and the proportion of EU consumers who were aware of the town of Devin was considered to be very small. The EUIPO erred in its assessment by concluding that the contested trade mark was descriptive of a geographical origin as regards the average consumer in the neighbouring countries of Bulgaria, namely Greece and Romania, and in all the other Member States of the EU.


 Judgment in Case C-619/17

Ministerio de Defensa v Ana de Diego Porras

21 November 2018

 Compensation for termination of a contract of employment.

Ms Diego Porras was employed under several temporary replacement contracts at the Ministry of Defence in Spain. During her last temporary replacement contract, she was asked to terminate of her employment contract to allow the rehiring of the person she was replacing.

Under Spanish law, temporary agents are not entitled to any compensation payments in for employment contract termination. Therefore, Ms Diego Porras brought proceedings before the Spanish Courts in order to challenge the legality of her employment contract and the conditions under which it was terminated.

In 2016, the Court of Justice ruled that fixed-term/temporary workers are entitled to contract termination compensation in the same way as permanent workers are. The Supreme Court of Madrid classified the Spanish law on temporary agents discriminatory and awarded Ms Diego Porras a compensation of 20 days’ salary for every year of service. Such compensation is provided for by Spanish law in case of termination of a contract for an indefinite period on objective grounds.

The Ministry of Defence have appealed against this judgment to the Spanish Supreme Court, which now asks the Court for further clarification on the elements of comparison to be taken into consideration in order to establish the right to compensation for workers under fixed-term contracts.