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European Court rules a particular taste cannot be copyrighted

Nov 15th, 2018

Fiona Kingscott, Solicitor

The Court of Justice of the European Union (CJEU) has ruled that the taste of a spreadable cheese is not capable of protection under EU copyright law.

‘Heksenkaas’ is a spreadable dip with cream cheese and fresh herbs, created by a Dutch retailer, the IP in which is owned by Levola. 

Smilde started manufacturing a similar product called ‘Witte Wievankass’ for a supermarket chain in the Netherlands.  Levola sued on the basis that the taste was the same, and infringed copyright in the taste of its Heksenkaas product. 

In the recent judgment, the CJEU said that in order to be a ‘work’ protected by copyright, the work must be expressed in a manner which makes it identifiable with sufficient precision and objectivity.  The taste of Heksenkaas was not capable of being expressed with sufficient precision and objectivity, in the view of the CJEU, so was not a work.

In the judgment, available here, the court said 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 […]’

Perhaps someone may one day develop technology to precisely and objectively identify tastes, and then, provided they were original creations, the tastes of food products may be protected from copying.

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Fiona Kingscott


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