EU Court Quashes War Over Herbed Cream Cheese

(CN) – Putting the kibosh on a case involving Dutch cream cheese, Europe’s highest court ruled Tuesday that the taste of a food product is not eligible for copyright protection.

Before making it to the Grand Chamber of the European Court of Justice in Luxembourg, the case here began brewing over a decade ago when a Dutch retailer of vegetables and French produce created the spreadable dip Heksenkaas.

Levola paid to take over the intellectual property rights for the herbaceous cream cheese in 2011 and patented its manufacturing process the next year. In 2012, however, the competing product Witte Wievenkaas hit the shelves of a supermarket chain in the Netherlands.

Levola sued that product’s maker Smilde in Gelderland District Court, and it appealed to the Gerechtshof Arnhem-Leeuwarden in 2015 when its claims were thrown out.

In another loss for Levola, the European Court of Justice found Tuesday that the company offered little support for its claim that “the taste of a food product may be classified as a work of literature, science or art that is eligible for copyright protection.”

“The taste of a food product cannot, however, be pinned down with precision and objectivity,” the ruling states. “Unlike, for example, a literary, pictorial, cinematographic or musical work, which is a precise and objective form of expression, the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable since they depend, inter alia, on 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.

“Moreover, it is not possible in the current state of scientific development to achieve by technical means a precise and objective identification of the taste of a food product which enables it to be distinguished from the taste of other products of the same kind.”

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