The taste of cheese is not protected by copyright

The Netherlands’ court of appeal had asked the European Court of Justice to rule on whether the taste of food could be protected under the Copyright Directive. The latter deduced that the taste of food was too ‘subjective and variable’ for it to satisfy the requirements for copyright protection.

The pertinent case involved a spreadable cream cheese and herb dip, Heksenkaas, produced by Levola who argued that another cheese, namely, Witte Wievenkaas produced by Smilde had infringed its copyright. Levola wanted Smilde to cease the production and sale of Witte Wievenkaas as the former claimed that its cheese was a work protected by copyright.

The European court held that in order to qualify for copyright protection, the taste of a food must constitute a ‘work’ in this regard and meet the relevant criteria. It must be an original intellectual creation and there must be an ‘expression’ of that creation that makes it ‘identifiable with sufficient precision and objectivity’. The court decided that ‘the taste of a food product cannot be identified with precision and objectivity’ and that it can be ‘identified essentially on the basis of taste sensations and experiences, which are subjective and variable’. Influential factors for the taster could include age, food preferences and consumption habits. It was concluded that ‘the taste of a food product cannot be classified as a ‘work’ and consequently is not eligible for copyright protection under the directive’.

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