EU court: The taste of food products cannot be copyrighted

Luxembourg – The taste of a particular food product cannot be protected by copyright, the European Union’s top court has ruled in a dispute over a cream cheese dip made for a supermarket chain in the Netherlands.

The issue

The case was brought by Levola, which owns the intellectual property rights to a spreadable cream cheese and fresh herb dip called Heksenkaas (witches’ cheese).

The company accuses Smilde, the manufacturer of a product called Witte Wievenkaas (white straw cheese), of infringing on its copyright by reproducing the taste of Heksenkaas.

The case was escalated to the European Court of Justice (ECJ), the EU’s top tribunal.

The judgement

Its judges ruled that the qualities of a product can only be copyrighted if they can be classified as a “work,” meaning that they must express an “original intellectual creation,” according to a statement.

“Copyright protection may be granted to expressions but not to ideas, procedures, methods of operation or mathematical concepts,” the court noted, while adding that things can only be copyrighted if they can be identified with “sufficient precision and objectivity.”

This is not the case for the taste of foods, the Luxembourg-based judges argued, noting that taste depends on factors such as the age and food preferences of the person eating it.

A final decision must now be taken by the Dutch appeals court hearing the case, taking into account the ECJ ruling.