Taste cannot be subject to copyright, rules European Court

Responding to a case brought by Heksenkaas, a Dutch spreadable cream cheese, the European Court of Justice has ruled that the taste of a food product cannot be subject to copyright. Only a ‘work’ can be subject to copyright, ruled the Court, and for this to happen the law 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 Court reached its decision on the basis that the taste of a food product, “cannot be identified with precision and objectivity. 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. They depend on, amongst other things, 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.”
Dutch company Levola, which produces Heksenkaas, had argued that a similar rival cheese, Witte Wievenkaas, produced by Smilde, infringed its copyright.