13 November 2018Copyright

Dutch cheese taste not copyright-protectable, says CJEU

The taste of a Dutch cheese cannot be protected by EU copyright law, according to Europe’s highest court.

In a ruling handed down today, November 13, the Court of Justice of the European Union (CJEU) concluded that because the taste of a food product cannot be identified with precision and objectivity, it cannot be classed as a ‘work’ under the copyright directive (2001/29/EC).

Earlier this year, in July, advocate general (AG) Melchior Wathelet advised the CJEU to find that taste cannot be identified with sufficient precision to afford it copyright protection.

In 2014, Dutch food company Levola Hengelo accused Smilde Food of infringing the copyright of the taste of Heks’nkaas, a spreadable cheese product, through the sale of a similar product called Witte Wievenkaas.

The Court of Gelderland (Rechtbank Gelderland) concluded that it could not determine whether the taste of the product is protected by copyright, and dismissed Levola’s complaint.

On appeal, the Court of Appeal for Arnhem-Leeuwarden (Gerechtshof Arnhem-Leeuwarden) requested clarification from the CJEU.

The court asked the CJEU: “Does EU law preclude the taste of a food product—as the own intellectual creation of the author—being granted copyright protection?”

In addition, the appeal court asked whether the “instability” of food products, and the subjectivity of taste, prevents them being eligible for copyright protection.

A press release issued by the CJEU today noted that the taste of a food is not eligible for copyright protection.

“Unlike, for example, a literary, pictorial, cinematographic or musical work, which is a precise and objective expression, the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable,” said the press release.

The sensations and experiences depend on a number of factors particular to the person tasting the product, including age, food preferences and consumption habits, as well as on the environment or context in which the product is consumed.

The press release added: “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.”

A spokesperson for Smilde said it was pleased with the CJEU’s ruling and trusts that the decision will help resolve its dispute with Levola.

“However, this decision is not only relevant for Smilde, but also eliminates the fear that something that has been free for centuries (creation of a taste) could be monopolised,” said the spokesperson.

A more in-depth analysis, featuring lawyers’ comments, will follow. If you’d like to submit your opinion, please contact

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More on this story

26 July 2018   An advocate general yesterday advised the Court of Justice of the European Union that the taste of a Dutch cheese cannot be protected by EU copyright law, in an opinion which practitioners have mixed views on.
14 November 2018   Yesterday’s Court of Justice of the European Union ruling that the taste of a Dutch cheese cannot be protected by copyright law may come as little surprise, but the implications are unclear, according to lawyers.
4 May 2020   German ingredients supplier Döhler has prevailed over Irish food company Kerry Group in a trademark dispute at the EU General Court.