The European Court of Justice ruled Tuesday against Dutch company Levola in its attempt to copyright the taste of a spreadable cheese product it produces, finding that the taste of a food product is not eligible for copyright protection.
The case began over a decade ago when a Dutch food retailer created the spreadable dip Heksenkaas (commonly referred to as witches’ cheese). In 2011, Levola purchased the intellectual property of witches’ cheese and patented its manufacturing process. The next year, however, a rival foods products company, Smilde, began selling a similar spread, Witte Wievenkaas (white women’s cheese), and Levola subsequently brought suit.
Levola argued that “the taste of a food product may be classified as a work of literature, science or art that is eligible for copyright protection.” The court, however, was unconvinced and determined that “the taste of a food product cannot be identified with precision of objectivity” and thus is ineligible for copyright protection. The court explained that the subjective nature of taste make any objective analysis upon which a copyright can rest upon impossible.
Unlike, for example, a literary, pictorial, cinematographic or musical work, which is a precise and objective form of expression, the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable since they depend, inter alia, on 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 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.