The taste of cheese and the shape of chocolate – The week in copyright

You cannot copyright the taste of food, the European Court of Justice has been told.

The court has to rule on a dispute between two Dutch cheesemakers. One, Levola Hengelo, took exception to the other one, Smilde Foods, making a spreadable cheese with the same flavour as one of their own.

But a legal opinion given to the court argued that copyright law could not be extended to the taste of food. In his advice to the court, Advocate General Melchior Wathelet added that “to my knowledge, no other provision in international law protects, by copyright, the flavor of a food product.”

More on the tasty subject can be found here.

What about shapes?

And on the matter of comestibles, food giant Nestle lost a battle to copyright the shape of its Kit Kat chocolate bars. In 2006 the European Union Intellectual Property Office’s (EUIPO) had ruled that Nestle could copyright Kit Kat’s shape, but that decision was overturned in 2016.

This time the Court of Justice of the European Union (CJEU) ruled that the chocolate bar’s shape had not acquired “distinctive character” throughout the entire European Union.

In a blow to Nestle and its 16-year battle over the shape of the bar of chocolate, the court said that EUIPO must again consider whether the four-finger bar is sufficiently distinctive such that a consumer would automatically recognise it as a KitKat – without the words, logo or wrapper.

Quick-step U-turn for UM

Universal Music (UM) did a quick U-turn after outrage over its decision to force a take-down of a 2016 video of fans singing along to Prince’s “Purple Rain” following the singer’s death in 2016.

The short video, shot by a Minneapolis journalist on the streets of the city, shows thousands of fans singing the iconic song on the night Prince’s death was announced. It went viral when tweeted by the journalist, Aaron Lavinsky, back in 2016.

Two years later UM issued a take-down notice under the Digital Millennium Copyright Act of 1998 (DCMA) and Twitter complied. But a backlash soon followed and UM quickly backtracked.

“DCMA takedowns are an important tool for artists who need to protect their intellectual property online, but a major corporation abusing system to remove a news video shot by a newspaper photographer is innappropriate”, tweeted Lavinsky.

WiFi uber alles

Germans are hoping they will soon be getting a lot more WiFi spots thanks to a Federal Court of Justice ruling that WiFi operators are not liable for copyright infringement committed on their network.

The ruling said that under the new German Telemedia Act, internet providers are not liable for copyright infringement via file sharing conducted by third parties.

The ruling goes some way to soften some of the most stringent secondary copyright infringement regulations in the world. According to this article,”in most jurisdictions, you commit copyright infringement if you willingly and knowingly participate in the unlicensed distribution of copyrighted material. However, in Germany you faced punishment until recently for being an “interferer” in wrongdoing—someone who contributes to copyright infringement without being a perpetrator or participant”.

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