There Is No Copyright on Taste of Food, European Court Rules

November 13, 2018 Updated: November 13, 2018

BRUSSELS—Europe’s top court has ruled that the taste of a food can’t be protected by copyright in a landmark case that has pitted two Dutch cheesemakers against each other.

Judges at the European Court of Justice (ECJ) said the sensation of taste is unique to each individual and that there is no scientific way of quantifying what constitutes a distinctive flavor.

Levola, a Dutch food manufacturer, argued that a rival firm, Smilde, had infringed its intellectual property by making a product similar in taste to its iconic “witches’ cheese,” Heksenkaas, which is a spreadable cream cheese containing herbs.

The case was referred up to the Luxembourg-based court, which is the ultimate arbiter in all matters of European law, after judges in the Netherlands asked for a legal clarification on the parameters of copyright.

In its ruling, the ECJ said copyright law can only protect features that can “be identified with precision and objectivity,” meaning that senses like taste and smell don’t qualify.

“The court finds that the taste of a food product cannot be identified with precision and objectivity,” the judges concluded.

“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 judges said the taste of a particular food is dependent on various factors for each individual, such as age, food preferences, consumption habits, and the environment in which the food 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.”

The ruling sets a precedent that is likely to prevent other manufacturers of iconic foods from using intellectual property rules to protect themselves from copycat products in the future.

According to a statement from Levola, the decision leaves manufacturers of “creative” products like food and perfume wide open to imitation by cheaper rivals.

“We find it a pity and incorrect that the creative expression in food and perfumes do not have copyright protection and that everyone can make a copy of it,” said company director Michel Wildenborg.

European judges have been called in to rule on a number of controversial cases relating to food products in recent years.

In June 2017, the ECJ determined that products described as milk, cheese, butter, or yogurt must be derived from dairy in a move welcomed by farmers.

In a separate case in July this year, European judges annulled the EU-wide copyright of Nestle’s iconic Kit Kat which features four chocolate fingers, because a similar product already existed in Norway.