Europe’s highest legal authority the European Court of Justice has ruled that the taste of food is not protected by copyright after a case involving a Dutch cheese.
The ruling comes in relation to a case of a spreadable cream cheese and herb dip named Heksenkaas which is produced by Levola.
The Dutch company claimed that Witte Wievenkaas infringed its copyright with the taste of its cheese and asked the courts to force its producers Smilde to cease production and sale of the product.
The Dutch Court of Appeal referred the case to the EU’s top court in a bid to clarify whether the taste of a food product could be protected under the directive.
The ruling from the European Court of Justice stated that in order to qualify for a copyright the taste of the food must be capable of being classed as a ‘work’ and must fall under two forms of criteria:
- That it is an original intellectual creation
- That there was an ‘expression’ of creativity which makes the product uniquely identifiable
A statement from the ECJ said: “The taste of a food product cannot be identified with precision and objectivity.
“The taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable. The age, consumption habits and preferences of the taster, and the environment where the food is eaten can all affect the taste of the food.
“Accordingly, the court concludes that the taste of a food product cannot be classified as a ‘work’ and consequently is not eligible for copyright protection under the directive.”
The decision has set a precedent for the EU to observe and should prevent future cases of a similar nature.
The Dutch court will now make a final ruling in the case of Levola and Smilde but must consider the EU ruling when deciding on the ruling.
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