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Heks’nkaas fails to obtain copyright protection for the taste of cheese

A dispute over the exclusive right of reproduction due to the similarity in taste between two Dutch cheese producers, Levola, producer of ‘Heks’nkaas’, and Smilde, producer of ‘Witte Wievenkaas’, led to the Dutch Court of Appeal to refer questions to the CJEU:

1) Whether EU law allows copyright protection in taste;
2) If so, what requirements must be met in order to determine subsistence of copyright protection?

The first question being the primary area of interest, “Does Union law preclude the taste of food – as the author’s own intellectual creation – being granted copyright protection”.

The CJEU concluded the case by ruling against Levola’s Heks’nkaas argument that the similar taste of Witte Wievenkaas constituted a copyright infringement. According to the CJEU’s reasoning, ‘work’ could only cover something that could be seen or heard and food products cannot be perceived with precision, stability, and objectivity, which is essential to constitute copyright ‘work’.

Briffa’s comment:

Firstly, in order to obtain copyright protection, there needs to be precision in defining the work that protection has been sought for.

Secondly, when seeking protection for complex elements of a product, consider what other intellectual property rights – such as trade marks, design rights, patents and confidential information including know how and trade secrets – may be available to protect the various important aspects of the product.

Briffa is a boutique intellectual property law firm based in the Business Design Centre in Islington. We specialist in all aspects of contentious and non-contentious intellectual property law and practice, and we help our clients by helping them to identify, protect, commercialise and enforce their valuable intellectual property assets. Feel free to drop us an email on [email protected] or give us a call on 020 7288 6003 of you would like to book a free consultation.

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