Can food taste be protected by copyright?

November 2018

The answer to this question, according to the European Court of Justice (ECJ) is ‘No’. Copyright cannot protect the taste of food.

The case was brought by Dutch cheese producer Levola Hengelo B.V., who sued a competitive manufacturer Smilde Foods’ brand, Witte Wievenkaas, for copyright infringement of the taste of Hengelo’s herby cheese spread, Heks’nkaas.

Heks’nkaas, or Witches Cheese, is made of cream cheese and 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.

The European Court of Justice ruled the flavour of a food product can’t be classified as a ‘work’, as defined under EU copyright law, and is not an 'expression of an original intellectual creation'.

According to the ruling, in order for a ‘work’ like those of the 'literary, pictorial, cinematographic or musical' persuasion to be eligible for copyright protection, the subject matter to be protected must be expressed in a way that makes it 'identifiable with sufficient precision and objectivity.' 

Unlike such works, the ruling continues, food taste is more similar to 'an idea', because it varies from person to person, and depends on factors such as their age and food preferences and the context in which they’re eating the product. The taste of a food product is too subjective for copyright protection.

Levola Hengelo based their legal action on the fact that Dutch courts had ruled in 2006 that the cosmetics company Lancôme could, in principle, copyright the scent of a perfume. Following the ECJ ruling, Heks’nkaas director Michel Wildenborg stated that 'it's a discrimination of senses that something you can taste with your mouth is not protectable by copyright'. But to many the decision seems sensible: it would be hard to clearly define the boundaries of any copyright in a taste, so it would also be hard to identify any breach of that right.

The court ruling is based on the premise that there are not technical tests to identify – precisely and objectively – the taste of a food product. It will be interesting to see if future technical developments give food-manufacturers new grounds to challenge this court decision.

Heks’nkaas, is now a brand of Dutch food maker Salad Signature which bought it from Levola Hengelo earlier this year, while Witte Wievenkaas is now sold as Wilde Wietze Dip.

Professor Alexandros Paraskevas, Academic Lead