The taste is not protected by copyright

The Court of Justice of the European Union has decided that the taste of a food can not be protected by copyright. He established it in a sentence on two Dutch cheeses: the company Levola, which produces Heksenkaas, a cheese spread with aromatic herbs, claimed that the Smilde company had copied the taste of Heksenkaas to make its Witte Wievenkaas. The Court of Justice of the European Union - the body which must guarantee the respect of the law in the interpretation and application of the founding treaties of the Union - has decided that Witte Wievenkaas can continue to exist, because the taste is subjective and it can not therefore be copied.

The history of Heksenkaas began in 2007, when a fruit and vegetable merchant made it for the first time. In 2011 he decided to sell the recipe to Levola, which has been producing and distributing it for several years. From 2014 Smilde began to distribute Witte Wievenkaas, a cheese with a very similar taste but with a different recipe. The Levola company then asked the Dutch courts to make an injunction to prevent Smilde from selling it. Levola's thesis was that the taste of Heksenkaas could be considered protected by copyright, and that therefore Witte Wievenkaas constituted an illegal copy, a plagiarism.

The Dutch judges decided to seek an opinion from the Court of Justice of the European Union, which took advantage of the question to remember that, to be protected by copyright, "the taste of a food must be qualified as" work "» on the basis of a Community directive of 2001. The directive, the Court explained, presupposed that the starting object (in this case the Heksenkaas) constituted an original intellectual creation, expressible in some way. Again according to the Court, one can not speak of plagiarism if the taste is the same: if you come to similar flavors with different recipes, there is no problem. Because "it is not possible to carry out a precise and objective identification with regard to the taste of a food".

The Court also explained that while a film, a book or a painting are "precise and objective" works, the taste is not; because "it is essentially based on subjective and variable tastes and taste experiences" that "depend on factors related to the person who tastes the product under consideration, such as its age, its food preferences and its consumption habits, as well as the environment or the context in which this product is tasted ». In short: a Picasso is always Picasso, regardless of who looks at it and what he thinks looking at it. A herbal spread cheese is different based on who, where, when and how they eat it. And because, the Court always explains, "it is not possible, with the technical means available in the current state of scientific development, to carry out a precise and objective identification of the taste of a food, which makes it possible to distinguish it from the taste of other products of the same type ».

In recent years it has happened more than once that the Court of Justice of the European Union has expressed itself on issues related to food. In July he said that the form of Kit Kat could be imitated; in 2017 that vegetable products such as tofu could not be sold as if they were dairy products and that in order to be called "champagne" a product had to have at least 12 percent of champagne. As always, again in this case the Court expressed itself on the interpretation of a directive, not on the national dispute, in this case in the Netherlands. It is in fact explained that "it is for the national court to settle the case in accordance with the decision of the Court" and that "that decision also binds the other national courts to whom a similar problem is submitted".