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The highest court of the European Union has ruled that the taste of a food can not be protected by copyright. Here, people buy cheese in Gouda, the Netherlands, in 2015.
Tim Graham / Getty Images
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Tim Graham / Getty Images
The highest court of the European Union has ruled that the taste of a food can not be protected by copyright. Here, people buy cheese in Gouda, the Netherlands, in 2015.
Tim Graham / Getty Images
It was a classic legal battle between two Dutch herbal spreads manufacturers.
From one side, Heksenkaas. His name means "witch's cheese". It is a cream cheese spread with fresh herbs created in 2007 and sold by a company called Levola.
On the other hand, the cheese spread Witte Wievenkaas, made by a company called Smilde, apparently has a taste very similar to that of Heksenkaas. (This reporter unfortunately misses a reliable supplier of Dutch cheeses.)
Levola said that Smidle had violated his copyright on Heksenkaas' s taste and had asked the Dutch courts to order Smilde to stop selling his similar cheese.
The case was referred to the Regional Court of the Netherlands, which asked the Court of Justice of the European Union to answer the following question: can the taste be protected by the law of the Netherlands? 39; author?
No, the court announced today.
To be protected by copyright, the taste of a food product must be able to be classified as a "work" – which requires, in the first place, "an original intellectual creation" and, secondly, an "expression" of this creation. And this work must be expressed in such a way as to make it identifiable with sufficient precision and objectivity.
And on this last requirement, the court ruled that "the taste of a food product can not be identified with precision and objectivity".
"Unlike a literary, pictorial, cinematographic or musical work, for example, which is a precise and objective expression, the taste of a food product will be identified primarily on the basis of sensations and taste experiences, subjective and variables depend on, among other things, person-specific factors that taste the product concerned, such as age, food preferences and consumption patterns, as well as the environment or context in which the product is consumed. "
In other words, the taste of a food depends in part on who tastes it.
Part of the problem in the case of Levola is that it is not possible to account for the taste.
"Even an expert had to admit that it was very difficult to describe what is a taste," said Tobias Cohen Jehoram, Smilde's lawyer. The New York Times. "Our argument was that if you can not describe your monopoly, you have not sufficiently stated your claim."
And then there is the concept, enshrined in an international copyright treaty, which expressions can be protected but ideas can not.
"The copyright is not meant to be used to prevent the spread and use of ideas," said Joshua Marshall, an intellectual property attorney at Lawfisher's European law firm. Time. "The taste of a cheese with leek and garlic is really an idea."
A very good idea now that he talks about it.
The cheese business is not the only recent EU visit to the food court. Earlier this year, he had decided that Nestle's four-finger, trapezoidal Kat Kit was perhaps not distinctive enough to deserve trademark protection in Europe.
Do you want to celebrate the court's decision and the wonderful variety of tastes and how each of us lives it?
Follow this recipe and prepare your own batch of witch cheese. You are on solid legal ground, even if it tastes like reality.
