Can you copyright a taste?
That was the question before the Court of Justice of the European Union, which was asked to determine whether a Dutch company could claim exclusive rights to its spreadable cheese.
On Tuesday, the court offered its resounding answer: No.
Taste is “an idea,” the court ruled. It’s not an “expression of an original intellectual creation,” and therefore it can’t be protected by the law.
The case was brought five years ago by the Dutch company Levola. Levola has sold Heks’nkaas (which translates to Witches' Cheese), a silky white cheese, since 2001. It’s a mix of cream cheese, parsley, garlic and leeks. In 2013, rival company Smilde began crafting a spread called Witte Wievenkaas, which also references witches. The product included many of the same ingredients.
Levola said something didn’t smell right, accusing Smilde of copying its product.
But the Court of Justice was not convinced, saying that only “original intellectual creation” is eligible for a copyright.
The “subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity,” the court said, such as a book, a television show or a piece of art. “In that regard, the Court finds that the taste of a food product cannot be identified with precision and objectivity.”
The court said that taste is subjective, and that different people experience food differently. Therefore, a taste is not the same thing as, say, a movie or book, which is immutable. 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,” the court said.
The lawsuit isn’t quite as crazy as it sounds. In 2006, the Dutch courts ruled that Lancome could copyright the smell of its perfumes. (In 2013, French courts found the opposite.)
European intellectual property lawyer Joshua Marshall told the New York Times that the ruling made sense. “Copyright isn’t supposed to be used to stop the spread and use of ideas,” he said. “The taste of a leek-and-garlic cheese is really an idea.”