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Surely the taste of cheese is not eligible for copyright protection?

Written by Mark Reed on 13 November 2018

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As previously reported by Lawdit back in July, the taste of cheese cannot be classed as a ‘work’ under copyright. The Advocate General had previously advised that it could not comply with Directive 2001/29/EC and now the Court of Justice in the European Union (CJEU) has arrived at the same decision.

The CJEU was left with a question of whether EU law precludes the taste of a food product—as the own intellectual creation of the author—being granted copyright protection. The case is regarding a Dutch cheese company called Levola Hengelo that claimed their copyright has been infringed by another company for the taste of their cheese, Heks’nkaas. Apparently, Smilde Food has produced a spreadable cheese with the same taste and called it Witte Wievenkaas. The case was taken to court, and went all the way to the highest court in Europe, the CJEU.

This was a difficult case to consider because it was an issue that had to address whether the subjectivity of taste and the instability of food products would prevent them affording copyright protection. The decision was finally made after months of deliberation of which, as provided in a press release by the CJEU, “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. 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.”

Ultimately the opinion of the court was that the taste of food is not eligible for copyright protection and will carry weight in all subsequent cases of a similar nature. We at Lawdit have considered this ruling and are of a similar opinion that without technical advancements, the ability for taste of food would be difficult to afford copyright protection considering taste has a subjective element to it.

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