One cheesemaker creates a cheese. Cheesemaker A is very proud of this cheese. A fantastic combination of cream cheese, parsley, garlics and leeks. The kids love it. It’s tasty and spreadable, and so successful that Cheesemaker B down the road starts making their own version. It looks the same, contains pretty much the same ingredients, and tastes the same. Cheesemaker A is miffed, and takes Cheesemaker B to court, accusing them of breaching copyright by stealing their taste. Do they succeed?
The situation outlined above is almost exactly what happened between Dutch cheesemakers Levola (Cheesemaker A) accused Dutch cheesemaker Smilde (Cheesemaker B) of stealing its intellectual property in producing a cream cheese, parsley, garlic and leek blend. Five years ago Levola took Smilde to court ,and now the Court of Justice of the European Union has struck down the case, forcing everyone to think long and hard about what exactly constitutes ‘taste’.
The “subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity,” the court wrote, giving books, films and pieces of art as examples. “In that regard, the Court finds that the taste of a food product cannot be identified with precision and objectivity.”
Taste, on the other hand, depends 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.”
Weirdly enough, this isn’t the first time sensory experience has been subjected to the long, dry ruling of the law. In 2006 a Dutch court found that Lancome was legally allowed to copyright the scent of its perfumes, although seven years later a French court found the opposite.
“Copyright isn’t supposed to be used to stop the spread and use of ideas,” said European intellectual property lawyer Joshua Marshall. “The taste of a leek-and-garlic cheese is really an idea.”