Can you copyright a taste?

Seemingly not – the European Court of Justice has ruled that food is too ‘subjective and variable’ to be protected under copyright law

Levola Hengelo has produced a cream cheese and herb dip, Heksenkaas, since 2007. It took rival company Smilde to court for Witte Wievenkaas, claiming it was a reproduction of the taste of Heksenkaas

Levola Hengelo has produced a cream cheese and herb dip, Heksenkaas, since 2007. It took rival company Smilde to court for Witte Wievenkaas, claiming it was a reproduction of the taste of Heksenkaas

a
 

Earlier this year we pondered whether one could copyright a biscuit, and we learned that the distinctive shape of a biscuit could be protected under design or trademark law, alongside the name of the product too, of course. The idea of copyrighting food products and the intellectual property connected to them in a more general sense, beyond a brand name or a geographically protected area such as Champagne, appears to be rather vague, perhaps understandably so. How can someone claim ownership over something as ubiquitous as Irish stew or soda bread, for example?

Last month, the European Court of Justice ruled that food was too “subjective and variable” to be protected under copyright law. This latest and rather significant ruling was brought about by a dispute about spreadable cream cheese.

Levola Hengelo is a Dutch company that has produced a cream cheese and herb dip known as Heksenkaas, which translates as “witches’ cheese”, since 2007. It took rival company Smilde to court for a product called Witte Wievenkaas that they’ve been producing for a Dutch supermarket since 2014. Levola claimed this product was a reproduction of the taste of Heksenkaas.

Copyright law

Whereas words, photographs, cinematography and music is more clearly protected under copyright law, the judges at the court found that the taste of a food product is not eligible for copyright protection. A press release from the court it was noted “the taste of a food product cannot be classified as ‘work’” and therefore isn’t eligible for copyright protection. “Classification as a ‘work’ requires, first of all, that the subject matter concerned is an original intellectual creation,” the court states. “Secondly, there must be an ‘expression’ of that original intellectual creation.” The court ruled “the taste of a food product cannot be identified with precision and objectivity”, therefore deeming it ineligible for copyright protection.

Intellectual property

The ruling is not a welcome one to many in the food industry, particularly those who have been campaigning for stricter protections over the intellectual property of taste. The director of Heksenkaas maker Levola Hengelo, Michel Wildenborg, expressed the company’s disappointment. “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,” he said.

a
The Irish Times Logo
Commenting on The Irish Times has changed. To comment you must now be an Irish Times subscriber.
SUBSCRIBE
GO BACK
Error Image
The account details entered are not currently associated with an Irish Times subscription. Please subscribe to sign in to comment.
Comment Sign In

Forgot password?
The Irish Times Logo
Thank you
You should receive instructions for resetting your password. When you have reset your password, you can Sign In.
The Irish Times Logo
Please choose a screen name. This name will appear beside any comments you post. Your screen name should follow the standards set out in our community standards.
Screen Name Selection

Hello

Please choose a screen name. This name will appear beside any comments you post. Your screen name should follow the standards set out in our community standards.

The Irish Times Logo
Commenting on The Irish Times has changed. To comment you must now be an Irish Times subscriber.
SUBSCRIBE
Forgot Password
Please enter your email address so we can send you a link to reset your password.

Sign In

Your Comments
We reserve the right to remove any content at any time from this Community, including without limitation if it violates the Community Standards. We ask that you report content that you in good faith believe violates the above rules by clicking the Flag link next to the offending comment or by filling out this form. New comments are only accepted for 3 days from the date of publication.