Food Policy

Cheese Fight Ends With Court Declaring Producers Can't Copyright Taste

Taste is subjective and food producers have to deal with it


Rainer Jensen/dpa/picture-alliance/Newscom

Can the taste of a particular food product be copyrighted? Last week, a court in the European Union answered that question, holding that food producers may not copyright the taste of their foods. The case had pitted two Dutch herbed cream cheese spread makers—Heksenkaas ("witches' cheese") and Witte Wievenkaas ("wise women's cheese")—against each other.

Generally, copyright protects works and expressions—songs, movies, etc.—rather than ideas. A copyright provides its owner with an "exclusive legal right to reproduce, publish, sell, or distribute the matter and form of something."

The makers of Heksenkaas, first produced in 2007, claimed their competitor's cheese, Witte Wievenkaas, a budget competitor that debuted in 2014, tasted exactly like Heksenkaas and claimed the latter had infringed on its copyright on the taste of Heksenkaas.

First filed in Dutch court, the case was later removed to the European Court of Justice (ECJ).

"The taste of a food product cannot… be pinned down with precision and objectivity," the ECJ ruled. "Unlike, for example, a literary, pictorial, cinematographic or musical work, which is a precise and objective form of expression, the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable[.]" It also found that, in order to secure a copyright, a food's "originality must be technically evident, not just a question of preferences."

As a result, the ECJ held that European law "preclude[es] the taste of a food product from being protected by copyright under that directive and [bars] national legislation from being interpreted in such a way that it grants copyright protection to such a taste." The ECJ ruling applies throughout the European Union.

Interestingly, at one time dishes were capable of securing legal protection at least in part because of their unique taste. Probably the only thing I recall from my Patent Law class in law school, in fact, was taught on the first day of that class. Namely, we learned that the first-ever such protection was granted more than 2,500 years ago to a restaurant in Sybaris, in Southern Italy, an area at the time ruled by Greece.

According to the course textbook, the Sybarites "enacted a law that gave exclusive rights to those who created certain culinary delights…. [such that] if any confectioner or cook invented any peculiar and excellent dish, no other artist was allowed to make this for a year[.]"

Some reports have characterized the ECJ's ruling last week as a loss for food manufacturers. But that's a wildly narrow and one-sided view of the case. Of course, it's a loss for the food manufacturers that sought (or might have sought) to copyright the taste of their foods. But it's a win for their numerous competitors specifically and for innovators and innovation in general. Most important, perhaps, it's a win for EU consumers, who can continue to choose between the more expensive Heksenkaas and its lower-priced competitor, Witte Wievenkaas.

But the case also has broader implications for consumers and for food freedom. The subjectivity of taste—specifically of one's taste in food—is something I've focused on for many years. That's because the subjectivity of taste implicates rights, at least here in the United States.

"[O]ne's taste for food, or one's liking for certain kinds of music, art, reading, recreation, is certainly fundamental in our constitutional scheme—a scheme designed to keep government off the backs of people," wrote U.S. Supreme Court Justice William O. Douglas in a dissent from a denial of cert. in a 1972 case.

Efforts to limit choices in food, in other words, necessitate government action that narrows our rights. The ECJ ruling, which does the opposite, is a welcome development.