Can you copyright a taste?

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.

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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.