No Accounting for Taste. No Copyrighting, Either

You can copyright lots of things, but not the way food tastes. That's according to the European Court of Justice, which was asked to rule on a case involving spreadable Dutch cheeses. Food producer Levola Hengelo, which began selling cream cheese and herb dip Heks'nkaas in 2011, argued the Witte Wievenkaas cheese offered by Smilde Foods beginning in 2014 infringed Heks'nkaas’ copyright with its similar taste, reports the BBC and New York Times. The court wasn't having it, however, ruling that taste doesn't fit the definition of a copyrighted work: an intellectual creation "identifiable with sufficient precision and objectivity." Taste is "subjective and variable," therefore it can't be protected, the court said.

"It's a discrimination of senses that something you can taste with your mouth is not protectable by copyright," says Heks'nkaas CEO Michel Wildenborg. The court disagreed. Taste 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," it declared. (The same court ruled against Kit Kat—"four trapezoidal bars aligned on a rectangular base"—earlier this year.)