European Court Rules Against Tasty Cheese

As previously reported, Levola, a Dutch company that produces “Heks’nkaas,” or “witches’ cheese,” has been in court battles since 2015 over copyright claims. Levola claimed that it held copyright for Heks’nkaas’ unique taste.

An opinion delivered by a Dutch lower court was ultimately appealed to the European Court of Justice to settle the question of whether taste can be considered copyrightable under European Copyright Law.

On November 13, 2018, the European Court of Justice delivered its ruling and decided against Levola. The European Court of Justice held that the taste of a food product is not eligible for copyright protection as it does not meet the requirements for being classified as a “work”. To be classified as a “work”, the product must:

1. be an original intellectual creation; and
2. include an “expression” that makes it “identifiable with sufficient precision and objectivity.”

Levola’s Heks’nkaas did not meet those criteria. Cheese, like other food and drink products, is identified on the basis of taste sensations and experiences, which are subjective and variable depending on food preferences, age, and consumption contexts, inter alia. As a result, the cheese’s taste was not eligible for copyright protection under European Copyright Law.

Authors: Jaclyn Tilak and Hassan Rasmi, 2018/2019 Articling Student-at-law