Archive

Can you copyright a cheese? A top European court says no. | TribLIVE.com
U.S./World

Can you copyright a cheese? A top European court says no.

The Washington Post
442590GtrNetherlandsCheese111418Heksnkaas
Heks’nkaas cheese

Can you copyright a taste?

That was the question before the Court of Justice of the European Union, which was asked to determine whether a Dutch company could claim exclusive rights to its spreadable cheese.

On Tuesday, the court offered its resounding answer: No.

Taste is “an idea,” the court ruled. It’s not an “expression of an original intellectual creation,” and therefore it can’t be protected by the law.

The case was brought five years ago by the Dutch company Levola. Levola has sold Heks’nkaas (which translates to Witches Cheese), a silky white cheese, since 2001. It’s a mix of cream cheese, parsley, garlic and leeks. In 2013, rival company Smilde began crafting a spread called Witte Wievenkaas, which also references witches. The product included many of the same ingredients.

Levola said something didn’t smell right, accusing Smilde of copying their product.

But the Court of Justice was not convinced, saying that only “original intellectual creation” is eligible for a copyright.

“The subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity,” the court said, like a book, television show or piece of art. “In that regard, the Court finds that the taste of a food product cannot be identified with precision and objectivity.”

The court said that taste is subjective, and that different people experience food differently. Therefore, a taste is not the same thing as, say, a movie or book, which is immutable. Tastes “depend on, amongst other things, 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,” the court said.

The lawsuit isn’t quite as crazy as it sounds. In 2006, the Dutch courts ruled that Lancome could copyright the smell of its perfumes. (In 2013, French courts found the opposite.)

European intellectual property lawyer Joshua Marshall told the New York Times that the ruling made sense. “Copyright isn’t supposed to be used to stop the spread and use of ideas,” he said. “The taste of a leek-and-garlic cheese is really an idea.”

TribLIVE commenting policy

You are solely responsible for your comments and by using TribLive.com you agree to our Terms of Service.

We moderate comments. Our goal is to provide substantive commentary for a general readership. By screening submissions, we provide a space where readers can share intelligent and informed commentary that enhances the quality of our news and information.

While most comments will be posted if they are on-topic and not abusive, moderating decisions are subjective. We will make them as carefully and consistently as we can. Because of the volume of reader comments, we cannot review individual moderation decisions with readers.

We value thoughtful comments representing a range of views that make their point quickly and politely. We make an effort to protect discussions from repeated comments either by the same reader or different readers

We follow the same standards for taste as the daily newspaper. A few things we won't tolerate: personal attacks, obscenity, vulgarity, profanity (including expletives and letters followed by dashes), commercial promotion, impersonations, incoherence, proselytizing and SHOUTING. Don't include URLs to Web sites.

We do not edit comments. They are either approved or deleted. We reserve the right to edit a comment that is quoted or excerpted in an article. In this case, we may fix spelling and punctuation.

We welcome strong opinions and criticism of our work, but we don't want comments to become bogged down with discussions of our policies and we will moderate accordingly.

We appreciate it when readers and people quoted in articles or blog posts point out errors of fact or emphasis and will investigate all assertions. But these suggestions should be sent via e-mail. To avoid distracting other readers, we won't publish comments that suggest a correction. Instead, corrections will be made in a blog post or in an article.