Can You Copyright a Taste?

The Dutch are serious about cheese.

A Van Gogh painting is easily identifiable. Its brush strokes are distinctive and hard to imitate. It’s a known quantity, clearly a work of artistic genius.

But how do you quantify a taste?

You may remember with fondness your anniversary dinner at that seafood place, but could you really say that the dinner was one of a kind? That it had that ineffable something that makes a work of art … art?   

This question is at the heart of a lawsuit recently decided by a European court.

The Dutch are Serious About Cheese

It all started when a Dutch cheese company called Levola created a soft herb and cream cheese spread in 2007. They named their cheese Heksenkaas, which means “witches’ cheese.” Unfortunately, Levola’s blend of parsley, garlic, leeks, and cream cheese taste was so popular that another company, Smilde, created its own spread in 2013. Smilde called its product Witte Wievenkaas, which also references witches.

Levola responded right away, arguing that Smidle had infringed its copyright on the taste of Heksenkaas. They went to Netherland’s regional court. The Dutch court asked the Court of Justice of the European Union to rule on the sensitive issue of whether or not taste could be copyrighted at all.

It All Comes Down to Precision and Objectivity

The matter is interesting, and it’s one that has been debated before. Dutch courts ruled in 2006 that Lancome could copyright the smell of its perfumes. Seven years later, however, French courts decided the opposite.

In this case, the judges concluded that the taste of a food was “too subjective and variable” to warrant copyright protection.

The EU Court argued that the taste of any food product could not be identified “with precision and objectivity,” but was instead determined “essentially on the basis of taste sensations and experiences.” Furthermore, because these taste sensations and experiences depend largely on personal preference and eating habits, they were too subjective to protect by law.

It makes sense. What tastes delicious to one person could be vile to another. As they way, there’s no accounting for taste.

The Difference Between an “Idea” and a “Work”

The European court went on to say that, in order to meet the qualifications for a copyright, the taste of a particular food product had to be extraordinary enough to be classified as a “work.” This would be unlikely, because to be called a “work,” it would have to meet two criteria:

  • The thing in question is an original intellectual creation, and …
  • An “expression” of the creation, which makes it “identifiable with sufficient precision and objectivity.”

The first criteria may apply to a food product – although it’s a stretch – but the second criteria definitely does not apply. As it turns out, the taste of one spreadable cheese is difficult to identify from that of another with any kind of precision.

So, unlike a musical or literary work, which is objectively precise and identifiable, the taste of a food product is hard to pin down. It depends largely on the person who’s tasting it. Therefore, it can’t be called a “work.”

Can You Copyright a Vague Idea?

Another factor to consider is the truism that, while expressions of art can be copyrighted, ideas cannot. Ask any intellectual property or copyright lawyer, and he or she will tell you that copyright isn’t meant to be a tool that stops the spread of ideas. In most countries around the world, the development of new ideas is encouraged! As intellectual property lawyer Joshua Marshall put it, “the taste of a leek-and-garlic cheese is really an idea.”

As much as wine or cheese or whisky makers would like to call their ideas for culinary success “art,” they simply can’t be quantified that way.

Any Other Food Cases Coming Up? Count Us In!

As for our attorneys, we’d like to take part in the next foodie issue that comes to an American court. Deciding on important issues like the ineffable taste of chocolate and champagne? Nice work if you can get it.

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