Europe’s top court has dismissed an attempt by a Dutch cheese maker to copyright its cream cheese, saying that the taste of a food product does not qualify for copyright protection.
In a ruling seen as a blow for the food industry, Dutch company Levola Hengelo, maker of a cheese spread called Heksenkaas or witches’ cheese, took rival Smilde to court for making what it said was a copy of its product and hence infringed its copyright in the taste of the cheese. The Dutch court subsequently sought guidance from the Luxembourg-based European Court of Justice (ECJ), but the ECJ judges backed the July recommendation of the court adviser saying ‘the taste of a food product is not eligible for copyright protection.’
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The judges stated the taste of food products is not comparable to literary, pictorial, cinematographic or musical work, and cannot be identified with precision and objectivity. The further explained that taste depends on the person tasting the product, age, food preferences and the environment and context in which the food is consumed. Heksenkaas, now a subsidiary of Dutch food maker Salad Signature which bought it from Levola Hengelo early this year, said it was disappointed with the court ruling. Heksenkaas director Michel Wildenborg said, ‘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.’