The Supreme Court of the European Union has decided that the taste of a food can not be protected by…
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It was a classic high-level team game between two Dutch herb spreading producers.
On one side, Weksenkaas. The name means “witch cheese” and it is a cream cheese spread with fresh herbs that was created in 2007 and sold by a company called Levola.
On the other hand, the cheese spread Witte Wievenkaas, made by a company called Smilde, which obviously tastes very similar to Witchcake. (This reporter unfortunately lacks a reliable supplier of Dutch cheeses.)
Levola said that Smidle had breached his copyright on the taste of Witchcannon and asked Dutch courts to order Smilde to stop selling his similar cheese.
The case was sent to the Dutch regional court, which asked the European Court of Justice to answer this question: Can tasting be copyrighted?
No, the court announced today.
To be protected by copyright, the taste of a food product must be classified as a “work” – which first requires “an original intellectual creation” and, secondly, an “expression” of that creation. And that work must be expressed in such a way that it can be identified with sufficient precision and objectivity.
And on the last claim, the court found that “the taste of a food product can not be identified with precision and objectivity.”  Unlike, for example, literary, visual, film or musical work, which is an exact and objective expression, the taste of a food product will be identified essentially on the basis of tasteful experiences and experiences that are subjective and variable. They depend, among other things, on factors that are specific to the person who tests the product concerned, such as age, food preferences and consumption habits, as well as the environment or the context in which the product is consumed.
In other words, the taste of a food depends in part on who tastes it.
Part of the problem for Levola’s case is that it is good that there is no accounting for taste.
“Even a expert must admit that it’s really difficu It describes what a taste is, says Tobias Cohen Jehoram, lawyer of Smilde New York Times . “Our argument was if you can not describe what your monopoly is, you have not adequately submitted your claim.”
And then there is the term, which is part of an international copyright treaty, that expression may be copyrighted but ideas can not.
“Copyright is not intended to be used to stop the spread and use of ideas,” said Joshua Marshall, an intellectual property lawyer at the European Law Firm Fisher times . “The taste of a purple cheese is really an idea.”
A very good idea, now that he mentions it.
The cheese fall is not the EU’s only last visit to the dish. Earlier this year, Nestlé’s four-finger, trapezoidal Kit Kat allegedly may not be distinctive to achieving brand protection across Europe.
Do you want to celebrate the judgment of the court and the wonderful variation of taste and how we experience it?
Follow this recipe and whip up your own series of witch cheese. You are legal, even if it tastes like the real thing.