Copyright Law Gets Cheesy; EU court rules taste cannot be protected

18 December, 2018

We usually associate copyright with music, literary or cinematic productions, but more recently the EU’s highest court, the European Court of Justice has had to consider whether the taste of cheese can be protected.  Whilst this is not the first time the European Court has had to rule on food law, this case is perhaps of a cheesier nature as the product under consideration was a spreadable cream cheese and herb dip.


Dutch cheesemakers, Levola Hengelo and Smilde Foods, became involved in a dispute over their respective cheese productions, Heksenkaas and Witte Wievenkaas.  Levola argued that the taste of its spreadable cheese product was copyrighted and it therefore issued proceedings, asking the Dutch court to prohibit Smilde’s production and sale of its cheese on the basis that it had infringed Levola’s copyright.  The Dutch court subsequently referred the case to the European Court to determine whether the taste of cheese can be copyrighted.


The European Court rejected the idea that food can be copyrighted and ruled that the taste of food cannot be protected under the Copyright Directive.  National laws throughout the EU can consequently not be interpreted as granting copyright protection to taste.  In essence, copyright gives certain exclusive rights to persons who create original ‘works’.  In order for a product to be eligible for copyright protection, it must be capable of being classified as ‘works’, which formed the basis of the European Court’s judgment.


Although Levola argued that the classification of taste as work was possible, comparing the taste of food to the scent of a perfume, which the Netherlands courts had previously said was capable of copyright protection, it was determined that the taste of a food product cannot be classified as ‘work’.  To be classified as work, the subject matter of the food product must be capable of being classified as such.  However taste, which the European Court referred to as being “identified essentially on the basis of taste sensations and experiences”, is arguably unquantifiable and “the taste of food cannot be identified with precision and objectivity”.


In its ruling the European Court cited 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”.  The judgment is in contrast to recent developments in this area, for example the relaxation of trade mark law which no longer requires a trade mark to be ‘graphically represented’ (Trade Mark Regulations 2018) and food scientists will have to look elsewhere when seeking to protect their new creations.


From a legal perspective, this ruling helps to further define the boundaries of copyright law and thus intellectual property and offers some certainty on what can / cannot be protected, but for the time being food scientists will need to look for other ways to protect their new creations.  Nevertheless, as the legal limits of copyright law in this case seem to be based on what can be objectively defined, it raises the question of whether scientific developments in this industry could serve to undermine the judgement and ultimately assist distinctive tastes achieving the necessary ‘works’ classification.  Watch this space.