Taste Cannot be Copyrighted, EU High Court Holds

The European Court of Justice’s Grand Chamber has determined that taste cannot be copyrighted in a lawsuit alleging copyright infringement of a cheese spread. Levola Hengelo BV v. Smilde Foods BV, No. C-310/17 (E.C.J., entered November 13, 2018). The court considered whether “taste” amounts to a work under copyright law. “[F]irst, the authorities responsible for ensuring that the exclusive rights inherent in copyright are protected must be able to identify, clearly and precisely, the subject matter so protected,” the court stated. “The same is true for individuals, in particular economic operators, who must be able to identify, clearly and precisely, what is the subject matter of protection which third parties, especially competitors, enjoy. Secondly, the need to ensure that there is no element of subjectivity –– given that it is detrimental to legal certainty –– in the process of identifying the protected subject matter means that the latter must be capable of being expressed in a precise and objective manner.”

“The taste of a food product cannot, however, be pinned down with precision and objectivity. 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.” Accordingly, the court declined to classify “taste” as protected by copyright.