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Freshfields Risk & Compliance

| 1 minute read

ECJ copyright ruling leaves cheese-maker with a bitter aftertaste

The European Court of Justice has ruled that copyright cannot protect the taste of food. The case was brought by Dutch food producer Levola Hengelo, which was seeking copyright in the taste of its herby cheese spread, ‘Heksenkaas’.

The court said the taste 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’. In order for a work 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, for example, a literary or cinematographic work, the taste of food depends on factors particular to the person tasting it - including their age and food preferences and the context in which they’re eating the product. The taste of food is too subjective for copyright protection.

Heksenkaas director, Michel Wildenborg argued that ‘it's a discrimination of senses that something you can taste with your mouth is not protectable by copyright’. But 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 pointed out the lack of 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-producers new grounds to revisit this decision. 


europe, european law, antitrust, fintech