EU Court rules that a food product cannot be copyrighted by virtue of its taste

In a recent case, the Court of Justice of the European Union (ECJ) has ruled that EU copyright laws cannot protect the taste of a food product as taste is too “subjective and variable” to meet the required requirements for protection.

The CJEU was asked to clarify the issue of copyright protection after a claim was made that a spreadable cream cheese dip was protected by copyright.

Levola Hengelo sued Smilde Foods, a manufacturer of a rival product, alleging infringement of copyright. Levola argued that it was possible to classify the taste of a product as eligible for copyright protection. It was said that this was analogous to recognising copyright in the scent of perfume which the courts in the Netherlands have previously said was possible.

In its judgment, the ECJ said that to be eligible for copyright protection, the taste of a food must be capable of being classified as a “work” and had to meet two criteria:

• It must be an original intellectual creation.
• There was an expression of that creation that makes it “identifiable with sufficient precision and objectivity”.

The Court found that it is not possible for the taste of food to be “pinned down with precision and objectivity” and therefore a food product could not be classed as a ‘work’ and so was not eligible for copyright protection under the directive.

This case is one of several recent rulings by the European Union on food and drink. In 2018, the Court ruled that the Kit-Kat did not merit protected status by virtue of the shape of its bar. In June 2017, it ruled plant-based foods could not be branded with dairy-style terms. And, in December 2017, it ruled that a German discount store could label its product Champagner Sorbet because it contained 12% champagne.

This most recent decision may come as a disappointment to the many food producers who are constantly looking for ways to distinguish and protect their products.