Taste ‘too subjective’ to copyright: CJEU

By Katy Askew contact

- Last updated on GMT

Europe's highest court finds taste cannot be copyrighted ©iStock
Europe's highest court finds taste cannot be copyrighted ©iStock
The Court of Justice of the European Union (CJEU) has decided taste cannot be protected by copyright law because it is ‘too subjective’ to stand up legally.

The dispute was referred to the CJEU after Dutch cheese producer Lecola, which produces the Heks’nkaas brand, accused fellow Dutch dairy Smilde of ‘infringing’ on the distinctive taste profile of its garlic and herb spreadable cheese through its Witte Wievenkaas cream cheese.

Lecola’s case followed a 2006 ruling from the Dutch courts that Lancome could copyright the smell of its perfumes. Unable to reach a final decision on whether this precedent could be applied to taste, the appeals court in Arnhem-Leeuwarden asked the CJEU to step in.

The CJEU was asked to decide whether EU law allows copyright protection in taste and, if so, what requirements must be met to determine subsistence of copyright protection.

Taste is ‘an idea’

The CJEU ruled against Levola’s Heks’nkaas argument.

It found taste is “an idea”​ not “an expression of an original intellectual creation”​ – and therefore not protected by copyright law.

Further reading

The flavour of food cannot be copyrighted, ECJ told. So how can you protect your product? Read more here.

The “subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity,​” the Court said.

In that regard, the Court finds that the taste of a food product cannot be identified with precision and objectivity.”

Taste is subjective and different people experience food differently, the Court suggested. Tastes “depend on, amongst other things, factors particular to the person tasting the product concerned, such as age, food preferences and consumption habits, as well as on the environment or context in which the product is consumed,”​ it said.

“Because taste is too subjective it cannot be a legal precedent,”​ Karin Verzijden a lawyer with Amsterdam-based life sciences law firm Axon told FoodNavigator.

It is interesting to note that the CJEU’s interpretation of taste appears to focus on taste preference – how much someone likes a flavour – rather than taste perception which, sensorial scientists widely believe, is less open to interpretation.

‘Importance has been overrated’

Versijden downplayed the impact the ruling is likely to have. While she said that the decision was interesting from a legal perspective – particularly given the Dutch court’s earlier decision on smell – the legal expert added the ruling’s “importance has been overrated”.

“Taste is important for purchase but companies do not differentiate by protecting taste through copyright… What I see instead as a competitive advantage is a science based product where you can make particular health claims or gain patent protection. I think that is far more valuable in terms of enforcement. Once you have a patent you have something to show.”

Verzjiden also noted that if the court ruling had gone in the other direction it would remain extremely difficult to prove copyright infringement based on taste. “How would you protect this? How would you decide if there was an infringement?”

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