The taste of food cannot be copyrighted, the European Court of Justice has ruled in a dispute which centres on a Dutch processed cheese.
The dispute is between the makers of Heks’nkaas (witches’ cheese) and Witte Wievenkaas (white or wise women’s cheese), both of which are a spreadable cream cheese with herbs.
Heks’nkaas first came on the market in 2007 and was then owned by food group Levola. In 2014, Frisian company Smilde began producing Witte Wievenkaas and Levola went to court, arguing that the new product was too similar to Heks’nkaas.
The Dutch court then referred the case to the European court in Luxembourg for its opinion.
In that ruling published on Tuesday, judges say that, in order to be protected by copyright under EU directives, the taste of a food product must be capable of being classified as a ‘work’.
To be classed as a ‘work’ the subject matter is an original intellectual creation, the court said.
In the case of food, however, the taste ‘cannot be identified with precision and objectivity’, the court said. ‘The taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable.’
A spokesman for Smilde welcomed the ruling, saying it had helped to further define the boundaries of intellectual property.
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