INSIGHT

Tough cheese: Top European court denies copyright protection for taste

Intellectual Property Industrials Patents & Trade Marks

In brief

Dutch food company Levola attempted to claim copyright in the taste of its cheesy dip, but the European Court of Justice left it feeling blue. Summer Clerk Sarah Muller and Lawyer Ammy Singh report.

The facts

It was not a 'gouda' day in court for Dutch food company Levola when its attempt to claim copyright in the taste of its cheesy dip was denied by the European Court of Justice.

Levola argued that it owned copyright in the taste of its signature dip Heksenkaas, a popular spread made of cream cheese and fresh herbs. It alleged that a rival company, Smilde Foods, had infringed this copyright by making and selling a similar cheesy dip to a supermarket chain in the Netherlands. While Levola holds a patent for the method of manufacturing Heksenkaas, its claim was directed at protecting its interest in the flavour of its dip.

A Dutch Regional Court of Appeal referred the central question to the European Court of Justice (the ECJ), asking whether the taste of a food product is eligible for copyright protection under the EU Copyright Directive on the harmonisation of certain aspects of copyright and related rights (the Directive). The ECJ shredded this proposition in its judgment on 13 November 2018, deciding that the taste of a food product cannot be considered a 'work' that is an expression of an original intellectual creation. It found that the subject matter of a 'work' under the Directive must be 'expressed in a manner which makes it identifiable with sufficient precision and objectivity'.

The court concluded that, unlike writing, music, films or images, the taste of a food product cannot 'be pinned down with precision and objectivity'. Rather, taste varies subjectively from person to person, depending upon the person's age, food preferences, and the context or environment in which they are eating. As there is no way to measure scientifically whether a certain food product is objectively different from another similar product, the taste cannot be precisely identified.

What does this mean?

The implications of this 'grating' judgment flow throughout Europe, precluding all national laws from being capable of granting copyright protection to taste. Accordingly, food companies operating in Europe may have to 'grin and camembert it' when food products tasting very similar to their own enter the market.

Meanwhile, in Australia, the question of whether there is copyright in the taste of a food product has not been explicitly considered by the courts. However, it is unlikely that taste alone could attract copyright protection. Copyright can subsist in the written form of a recipe, but will not protect the actual food product created by following the recipe.

If this decision leaves a bad taste in your mouth, there are other options for food companies in Australia to protect the unique aspects of their products. For example, a recipe may be protected as a 'trade secret', provided that the recipe remains confidential. This approach has borne past success for the world-famous trade secrets of McDonald's Big Mac sauce, and KFC's secret mixture of 11 herbs and spices. Food brands can also be protected as registered trade marks, and manufacturing methods and processes may be patentable. Food for thought.