A Dutch cheese company tried to claim that it had a monopoly on the taste of a cheese spread. The Court of Justice of the European Union decided on Tuesday that a taste cannot be copyrighted.
Taste is "an idea," rather than an "expression of an original intellectual creation," the court ruled. And something that cannot be defined precisely cannot be copyrighted, it ruled.
The case was brought in the Netherlands but it had been referred to the European court to make a ruling that would apply across the bloc. Levola Hengelo, a Dutch food producer, had sued Smilde Foods, another Dutch manufacturer, for infringing its copyright over the taste of a cheese spread.
The Levola product, known as Heks'nkaas, or Witches Cheese, is made of cream cheese with herbs and vegetables including parsley, leek and garlic. Smilde's herbed cheese dip, which contained many of the same ingredients, was called Witte Wievenkaas, a name that also makes reference to witches. It is now sold as Wilde Wietze Dip.
Levola argued that the taste of food, like literary, scientific or artistic works, can be copyrighted. The company cited a 2006 case involving Lancome, the cosmetics company, that had accepted in principle that the scent of a perfume could be eligible for copyright protection.
Smilde responded that taste is subjective -- and thus ineligible for copyright.
Levola hired a culinary expert to help its case but failed to persuade the European court. "Even an expert had to admit it's really difficult to describe what a taste is," said Tobias Cohen Jehoram, a lawyer for Smilde. "Our argument was if you can't describe what your monopoly is, you have not sufficiently stated your claim."
There was no cheese-tasting offered for evidence, but the court agreed with Smilde that the taste of the cheese could not be defined with enough precision and objectivity to make it clear to other companies where they might be overstepping the mark.
"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 decision read.
Heks'nkaas, which is now a separate company from Levola, sells about 2,000 tons of the spread a year. Its uniqueness is attributable to a combination of freshness, sweetness and fat, said Michel Wildenborg, chief executive of Heks'nkaas. "It's not a cream cheese, it's not a salad, it's not a sauce, it's a little bit in between those concepts," Wildenborg said.
He admitted it was difficult to pinpoint the taste. Still, the decision itself was a bit of a sour ending, he said.
"It's a discrimination of senses that something you can taste with your mouth is not protectable by copyright," he said.
To be protected by copyright, a work must be an "expression" of an original intellectual creation.
"Copyright isn't supposed to be used to stop the spread and use of ideas," said Joshua Marshall, an intellectual property lawyer at the European law firm Fieldfisher. "The taste of a leek-and-garlic cheese is really an idea."
But it is theoretically possible to apply copyright law to food in other ways. If someone made beautiful cakes and saw them as a work of art, that person could have an argument, he said. "If somebody copied your cake creation and created one that looked visually similar or identical in the U.K., you'd have grounds for copyright infringement," Marshall said.
Business on 11/14/2018