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The taste of food is not protected by copyright, European Union's highest court rules


Two Dutch companies that make spreadable cheese and herb dip were at the center of a European Union court ruling that found that taste can't be copyrighted. (Juanmonino /Getty Images/iStockphoto)

The European Union’s highest court had to whey in on this dairy-based dilemma.

When one Dutch cheesemonger felt another Dutch cheesemonger’s product was too similar to its own, it was ultimately brought to the European Union’s Court of Justice, which ruled Tuesday that taste cannot be copyrighted.

“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,” the decision reads.

The food face-off began when Levola Hengelo, the company that owns the spreadable cheese and herb dip called Heksenkaas that launched 2007, argued that Smilde Foods, which has been manufacturing Witte Wievenkaas since 2014, infringed its copyright in the taste of Heksenkaas.

Levola wanted Smilde to “cease and desist from any infringement of its copyright, including the production, purchase, sale and any other marketing of the product known as Witte Wievenkaas,” according to a Court of Justice document.

A Regional Court of Appeal in the Netherlands had asked the Court of Justice whether the taste of a food product can be protected under the Copyright Directive, which the European Union enacted to unify copyright law across the continent.

“In today’s judgment, the Court makes clear 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,’” the ruling states. “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 judgement adds that for something to be a “work,” as described in the Copyright Directive, a copyrighted subject matter must identifiable with precision and objectivity.

“In that regard, the Court finds that the taste of a food product cannot be identified with precision and objectivity,” the judgement states.