A Copyright Debate Over Tasty Cheese in Europe

Recently, Levola, a company that bought a recipe for “Heks’nkaas” or “witches’ cheese” initiated legal proceedings claiming that it held copyright for the cheese’s unique taste.

The Dutch lower courts delivered divided opinions regarding whether copyright could exist over taste.

• The District Court in the Hague found that Levola sufficiently substantiated its claim for copyright infringement and granted a request for the ex parte seizure of infringing goods (see: The Hague District Court, January 13, 2015 judgment (Levola v European Food Company)).
• In another proceeding, however, the same court dismissed Levola’s application because it did not demonstrate the requisite elements to succeed on a copyright claim (see: The Hague District Court, May 3, 2017 judgment [ECLI:NL:RBDHA:2017:4384 (Levola v European Food Company)]).
• In a third proceeding, the Gelderland District Court denied Levola’s copyright claims on the merits (see: Gelderland District Court, June 10, 2015 judgment [ECLI:NL:RBGEL:2015:4674 (Levola v Smilde)]). This third proceeding led to an appeal to the Arnhem-Leeuwarden Appellate Court, which then referred the matter to the European Court of Justice (see: Arnhem-Leeuwarden Appellate Court, May 23, 2007 judgment (Levola v Smilde)).

The Advocate General of the European Court of Justice was of the view that original expressions must be sufficiently precise and objectively identifiable. His opinion to the Court stated that copyright typically only covers something that can be seen or heard. Taste, in contrast, cannot be perceived visually or audibly, and therefore cannot be considered a “work” under European Copyright Law.

Author: Hassan Rasmi, 2018/2019 Articling Student-at-law