The taste of a food product is not eligible for copyright protection

| Insight

Today the European Court of Justice delivered its judgment in the case C-310/17 (Levola Hengelo BV v Smilde Foods BV). The question in this widely discussed case was whether the taste of Levola's cheese (called "Heksenkaas") is a work protectable by copyright, and whether, because of this, Smilde Food's cheese represents a copyright infringement.

The Court reaffirmed that copyright law protects certain types of expressions. However, in order to qualify for copyright protection, the work’s expression must be identifiable with sufficient precision and objectivity. The Court found that this would not be the case with food products, reasoning that food taste essentially depends on taste sensations and experiences, both of which are subjective and variable.

Accordingly, the Court held that food product taste is not copyrightable subject matter. In other words, no one can claim exclusive rights to the taste of a food product.