EU court rules 'taste of food' not eligible for copyright protection

FILE PHOTO: Cheese makers prepare curds for Parmesan cheese at 4 Madonne Caseificio dell'Emilia dairy cooperative in Modena, Italy, February 16 2016. REUTERS/Alessandro Bianchi/File Photo
FILE PHOTO: Cheese makers prepare curds for Parmesan cheese at 4 Madonne Caseificio dell'Emilia dairy cooperative in Modena, Italy, February 16 2016. REUTERS/Alessandro Bianchi/File Photo
Ciaran Moran

Ciaran Moran

The European Court of Justice has ruled that the taste of a food product is not eligible for copyright protection after a dispute between two soft cheeses producers,

‘Heksenkaas’ is a spreadable dip with cream cheese and fresh herbs, 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, a company governed by Dutch law.

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

As Levola took the view that the production and sale of ‘Witte Wievenkaas’ infringed its copyright in the taste of ‘Heksenkaas’, it asked the Dutch courts to order Smilde to cease, inter alia, production and sale of that product.

Levola claims that the taste of ‘Heksenkaas’ is a work protected by copyright and that the taste of ‘Witte Wievenkaas’ is a reproduction of that work.

Hearing the case on appeal, the Gerechtshof Arnhem-Leeuwarden (Regional Court of Appeal, Arnhem-Leeuwarden, Netherlands) has asked the European Court of Justice whether the taste of a food product can be protected under the Copyright Directive.

In today’s judgment, 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.

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Classification as a ‘work’ requires, first of all, that the subject matter concerned is an original intellectual creation. Secondly, there must be an ‘expression’ of that original intellectual creation.

The Court also found that the taste of a food product cannot be identified with precision and objectivity.

Unlike, for example, a literary, pictorial, cinematographic or musical work, which is a precise and objective expression, the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable, it said.

It added that they depend on, amongst other things, factors particular to the person tasting the product concerned, such as age, food preferences and consumption habits, as well as on the environment or context in which the product is consumed.

Moreover, it the Court ruled that it is not possible in the current state of scientific development to achieve by technical means a precise and objective identification of the taste of a food product which enables it to be distinguished from the taste of other products of the same kind.

Accordingly, the Court 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.

Online Editors


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