The European Court of Justice held that the taste of food cannot be protected by Copyright. The Court held that the taste of food was too “subjective and variable” for it to meet the requirements for copyright protection.

The case involved a spreadable cream and herb dip Heksenkaas, which is produced by Levola. It was argued by Levola that another cheese on the market, Witte Wievenkaas infringed on its copyright.

Levola claim was that the cheese they produced was a work protected by copyright and that Smilde the producers of Witte Wievenkaas should stop selling and marketing its product.

In its judgement, the European Court said that, in order to qualify for copyright, the taste of a food must be capable of being classified as a “work” and it had to meet two criteria:

• That it was an original intellectual creation

• That there was an “expression” of that creation that makes it “identifiable with sufficient precision and objectivity”

The Court found that “the taste of a food product cannot be identified with precision and objectivity”. It said it was “identified essentially on the basis of taste sensations and experiences, which are subjective and variable”, citing age, food preferences and consumption habits as examples which could influence the taster.

The Court concludes that the taste of a food product cannot be classified as a ‘work’ and consequently is not eligible for copyright protection under the directive.