On 25 July 2018 an important legal opinion was rendered in a high-profile case regarding the possibility of copyright on taste. In this legal opinion the Court of Justice of the European Union (the CJEU) was advised by a special advisor, the ‘Advocate General’. He is of the opinion that taste should not be protected by copyright.
The case arose in the country famous for its cheese: the Netherlands. A Dutch company started selling cheese spread in 2007 with the name White Ladies cheese (Witte Wieven kaas) with garlic and herbs, that soon became very popular. As is often the case, similar products were launched by other third parties. The current case focuses on the original company initiating proceedings against another Dutch company also selling cream cheese, with the name Witches cheese (Heksenkaas). According to the claimant, the cream cheese of the defendant infringes the copyright that is vested in the White Ladies cheese.
The Dutch Court of Appeal requested the CJEU to rule on this dispute and to answer the question whether taste can be protected by copyright.
The Advocate General thus advised that taste should not be protected by copyright.
In its decision, the Advocate General followed a great part of the claimant’s arguments. The claimant’s main argument was that taste lacks appropriate means of reproduction. This argument is accepted.
The Advocate General considers that in order to establish if a work is a copyright-protected work, this work should be identifiable in a precise and objective way. This means that in order to be copyright-protected the work should be clear, precise, intelligible, and durable.
The Advocate General holds the opinion that there are no means yet to objectively identify taste. Taste in fact is subjective and as such is based on a subjective tasting experience. A taste will be experienced differently by each person and for this reason, it should not be possible to have it copyright protected. It could lead to uncertainties of what is protected and what isnot and thus lead to undesirable legal disputes.
While the CJEU still has to decide on the actual case, the advice from the Advocate General generally has a major influence on the final decision by the court. We will update this page as soon as the final decision by the CJEU is rendered.