Breaking new ground: taste now also protected under copyright law in the Netherlands!

The District Court in The Hague in the Netherlands has ruled in a decision of 13 January 2015 that tastes can also be copyrighted. The ruling was given in a case concerning the taste of Heksenkaas (‘Witch Cheese’). It has often been argued in the literature that there is no (fundamental) reason why creations perceptible with other senses than eyes or ears (touch, smell) should not be protected under copyright law, but this is the first time that the judiciary in the Netherlands has given a positive – ruling on this. This paves the way for protection of a new category, namely taste-works.

In 2006, the Dutch Supreme Court ruled in the Lancome-case that the fragrance of a perfume can be protected under copyright law. The ruling in that judgment is now used to protect the taste of the product traded by Levola under the brand name HEKSENKAAS®. The District Court rules (office translation):

‘Having regard to the judgment in Lancome/Kecofa (…), there is sufficient prima facie evidence to assume that a copyright can rest on a taste and that (the taste of) the product of the applicant meets the requirements for protection under copyright law.’

Levola argues that the so-called “Magic Cheese” of the defendant constitutes an infringement of its Heksenkaas taste-work. The District Court accepts this argument:

‘In the opinion of the District Court, the applicant has made sufficiently plausible that its right has been infringed on (…). It has sufficiently substantiated its infringement allegation and the taste of the two products is to some extent similar.‘

Levola has advanced in particular that the taste sensory characteristics of taste are eligible for protection. The protection is not so much about the (list) of ingredients with which the product is made, but about the impression of the end product that is perceptible with the taste senses. This product is a human creation, Heksenkaas is made by Mr Voerman, which according to Levola is capable of sensory perception. The work can be perceived by tasting. Levola had its arguments substantiated by a taste expert.

I note that the judge has given a preliminary ruling in these proceedings and that proceedings on the merits in this case have already been instituted. In the latter, the District Court will give its final ruling on whether the taste of Heksenkaas is copyrighted and infringed on by Magic Cheese. But in my opinion, this will not affect the value of the ruling now given, that taste can from now on be copyrighted.

By Joost Becker