We already reported earlier this year about the possibility of protecting taste. A new decision has now been handed down on taste protection, this time from the District Court of Gelderland, The Netherlands. The decision came in a case between producer Levola (which sells Heksenkaas) and Smilde Foods. According to the decision, it is of decisive importance to describe the taste of a product in great detail in order to decide whether it is protected by copyright law. The District Court rules:

“4.4. The essential question in this case is therefore whether taste can be protected under copyright law. For the sake of judicial efficiency, the district court will leave this question unanswered. Even if taste were regarded in a general sense as eligible for copyright protection – which can in no way be automatically assumed – this does not necessarily mean that the taste of the Heksenkaas product is/can be protected under copyright law, since Levola (as well as the expert it has engaged) has failed to actually describe or illustrate what the elements of the taste of the Heksenkaas product required in order to be eligible for copyright protection are.

4.5. Levola also argued that the texture and experience of the taste of the Heksenkaas product cannot be described and that the district court must itself experience the taste by trying the Heksenkaas product. The district court cannot follow Levola’s reasoning in this case. In order to be eligible for protection under copyright law, the party invoking the copyright protection for a particular work must assert why, or at least what makes it such, that its work should be protected. It is only in this way that an assessment can take place in the event of any infringement proceeding as to whether the alleged infringer has derived his work from a work that existed earlier. In addition, a (prior) description or depiction of the work (in this case, the taste of the Heksenkaas product) creates clarity for third parties (potential competitors), who can take this into account when producing a work / their own work. It is not up to the district court, as Levola has argued, to try the product and describe the taste of it. Let alone that – aside from the foregoing – the assessment of whether a taste (of a product like Heksenkaas) can be granted copyright protection or not, as well as whether tastes are similar or derived from each other, also gives rise to practical problems. Smilde argued to this effect that the taste of a product (such as Heksenkaas and Witte Wievenkaas) varies depending on, among other things, how old it is, how long it has been exposed to the air, at what temperature it is consumed and at what point during its shelf life the product is consumed. It also argued that the taste perception of the person tasting the product (for instance, an expert or an average consumer) differs from person to person.”

Although Levola did describe in the proceedings what should be defined as ‘taste’ (the total impression caused on the sense of taste by the consumption of a food, including the mouthfeel perceived with the sense of touch), it did not specify what the elements of the taste of Heksenkaas are. Levola did not assert what elements or combination of elements of the taste results in the copyright protection. Levola’s claims are dismissed.

For taste protection, it is therefore at least a requirement that the elements from which the taste is composed be actually described. This task lies principally with the party that wants to invoke the protection of a taste.

By Joost Becker