Netherlands: Based on the taste: copyright protected cheese

By Lara van Huizen, Peter van Gemert


If it is possible for scents to be protected by copyright, then why not taste? Two recent Dutch decisions on the copyright claims of the producer of the famous Heks'nkaas ("witches' cheese"), a cheese spread with a distinctive taste that has become popular in the Netherlands, have sparked a discussion on copyright protection of taste.

In 2012, Levola, the producer of Heks’nkaas, announced to competitors that it would seek to enforce copyright protection in relation to the taste of Heks'nkaas. The first visible result of this enforcement strategy is an ex parte order from January 2015 (published in March 2015) for protective measures from the District Court of The Hague. The Court granted a seizure of documents relating to the creation of European Food Company's "Magic Cheese" product. With reference to the Dutch Supreme Court decision Lancôme / Kecofa on the copyright protection of scents, the Court expressed the preliminary opinion that taste could also be protected under copyright law and that (the taste of) Heks'nkaas  would fulfil the conditions thereof.

Interestingly, the judge requested samples of both products. Following the tasting, the Court ruled that infringement was sufficiently plausible and that the taste of the two products was similar enough to warrant the seizure.

In order to prove infringement, it is important to define the copyright protected elements of the taste. This was the critical point in the second Heks’nkaas-related decision from June 2015 of the District Court of Gelderland in a case between Levola and Smilde Foods that produces Witte Wievenkaas (in Dutch mythology and legends, the Witte Wieven are spirits of "wise women"). In this case the Court assumed, for economic reasons, the possibility of copyright protection for taste, but held that Levola had failed to substantiate the elements of the taste of Heks'nkaas that would be protected by copyright. Neither Levola nor its expert witness had described or demonstrated these specific elements. Levola in return argued that these could not be described and that the judges needed to sample the Heks'nkaas in order to experience its taste. In this case, the judge refused to sample the cheese and held that it was up to Levola to substantiate why Heks'nkaas would be protected by copyright. In addition, the Court noted several potential practical issues, namely that the taste of a product varies with the age of the product, time of exposure to air, the temperature, remaining shelf life and also possibly due to the subjectivity of how taste is experienced. Nonetheless, the Court did not further rule on these issues as it was not necessary.

Not only do the Dutch love their cheese, they seem to have a history of claiming IP protection on foods. In 1947 the Dutch Patent Board of Appeal allowed a patent on a tomato/plum jam that had "an unexpected fresh taste" that "resembled neither the taste of plums nor tomatoes" and in 1992 a Dutch court considered the possibility of copyright protection for a recipe for liquorice candy, but refused protection because a similar recipe already existed.

A similar issue regarding scents - should they be patented or can they (also) be protected under copyright law - was decided for the Netherlands in the 2006 Supreme Court decision Lancôme v Kecofa referred to above. The Supreme Court held that under the Dutch Copyright Act, due to the general definition of the types of works, any scent being a product susceptible to human perception and having its own and original character and carrying the personal stamp of the creator1 can be a copyright protected work. It is thus the scent itself that is the subject of the copyright protection, and not the recipe or the substances that are detected by the olfactory system (the nose). The same holds for a painting, where it is not the combination of the cloth and the paint that is protected but the image itself.

Though the outcome of the District Court of The Hague and the District Court of Gelderland may seem as different as "chalk and cheese", these cases show that while copyright protection for taste may in theory be possible, there are practical issues in relation to enforcement even if the taste is original, distinctive and appears to have been copied. There is no clear precedent set by the above two examples. It therefore remains to be seen what direction any further attempts at invoking and enforcing copyright protection for taste will take in the Netherlands.

[1] Which is assumed not to deviate from the ECJ's standard of "own intellectual creation".