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Dutch Company Can’t Copyright the Taste of Its Cheese, E.U. Court Rules

Taste, according to the ruling, is an ‘idea’

The court deemed Levola’s argument to be full of holes, much like a chunk of Swiss. (Dominik Hundhammer/Wikimedia Commons)
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The European Union’s highest court has put an end to a long-fermenting dispute between two Dutch cheese producers. As Amanda Erickson of the Washington Post reports, the company Levola Hengelo, which makes an herb and veggie-filled cheese spread, tried to argue that a similar-tasting product by a different company was infringing on its copyright. But the European Court of Justice has decided that, much like a chunk of Swiss, Levola Hengelo’s argument is full of holes.

The court ruled that it is not possible to copyright a taste, which “cannot be identified with precision and objectivity,” as officials write in a press release. Copyrights, the court continues, are limited to “works”—like those of the “literary, pictorial, cinematographic or musical” persuasion—which are “precise and objective expressions.”

Taste is more akin to “an idea,” according to the ruling. Because the sensation of taste varies from person to person, and because it is not currently possible to define specific tastes in an objective way, Levola Hengelo’s claim did not make the cut.

One of the products at the heart of the dispute is a Levola Hengelo spread called Heks’nkaas (or Witches’ Cheese), which is made of cream cheese, herbs and vegetables like leeks and garlic, reports Amie Tsang of the New York Times. In 2014, the company Smilde began manufacturing an herbed dip containing similar ingredients; the name of the newcomer, Witte Wievenkaas, also referenced witches.

Smelling something rotten, Levola Hengelo took Smilde to court in the Netherlands, arguing that the taste of food can be copyrighted, much like scientific and artistic works, or even smells. After all, Levola Hengelo noted, Dutch courts had ruled in 2006 that the cosmetics company Lancôme could, in principle, copyright the scent of a perfume.

Smilde, on the other hand, argued that taste is subjective and therefore impossible to copyright. The case was bounced up to the European Court of Justice, which sided with Smilde. The ruling is significant, as Casey Quackenbush of Time notes, because it applies to the entire E.U. bloc.

This isn’t the first time that the European Court of Justice has dealt a harsh blow to a beloved snack food. In July of this year, for instance, it threw out an attempt by Nestlé to trademark the shape of its Kit Kats. So perhaps the folks at Levola Hengelo shouldn’t feel too blue about losing their cheesy legal battle. Even Kit Kats couldn’t catch a break.

About Brigit Katz

Brigit Katz is a freelance writer based in Toronto. Her work has appeared in a number of publications, including NYmag.com, Flavorwire and Tina Brown Media's Women in the World.

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