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Food taste ‘not protected by copyright’ rules EU court

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The ruling will have implications for cheese producers across the EU

The taste of a food cannot be protected by copyright, the EU’s highest legal authority has ruled in a case involving a Dutch cheese.

The European Court of Justice said the taste of food was too “subjective and variable” for it to meet the requirements for copyright protection.

The court was asked to rule in the case of a spreadable cream cheese and herb dip, Heksenkaas, produced by Levola.

Levola argued another cheese, Witte Wievenkaas, infringed its copyright.

The firm claimed that Heksenkaas was a work protected by copyright; it asked the Dutch courts to insist Smilde, the producers of Witte Wievenkaas, cease the production and sale of its cheese.

The Court of Justice of the European Union was asked by Netherlands’ court of appeal to rule on whether the taste of a food could be protected under the Copyright Directive.

Kit Kats, Tofu and Champagne

In its judgement, the European court said that, in order to qualify for copyright, the taste of a food must be capable of being classified as a “work” and it had to meet two criteria:

  • That it was an original intellectual creation
  • That there was an “expression” of that creation that 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”. It said it was “identified essentially on the basis of taste sensations and experiences, which are subjective and variable”, citing age, food preferences and consumption habits as examples which could influence the taster.

“Accordingly, the court concludes that the taste of a food product cannot be classified as a ‘work’ and consequently is not eligible for copyright protection under the directive,” it concluded.

Heksenkaas was originally created in 2007 by a Dutch vegetable producer and sold to Levola in 2011. Smilde began producing Witte Wievenkaas in 2014 for a Dutch supermarket chain.

This is not the first time the European Court of Justice has had to rule on food – and drink – produce:

  • In July 2018, it decided the Kit Kat did not merit protected status, dealing a major blow to Nestle’s lengthy legal battle to trademark the four-finger chocolate bar
  • In June 2017, it ruled plant-based foods such as tofu could not be branded with dairy-style terms
  • In December 2017, it found against a Champagne lobbying group, saying a German discount store could label its product Champagner Sorbet because it contained 12% champagne.

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