A Brie-f Tale of Copyright and Cheese to Share at Thanksgiving Dinner

Opinion, Levola Hengelo BV v Smilde Foods BV, Case C-310/17  

In an unfortunate queso failed copyright claims, Levola Hengelo, a Dutch food processor of once Humboldt beginnings, has lost a court case in which it attempted to enforce copyright protection in the taste of its cheese product, Heks’nkaas.

Levola had become salty after a competitor, Smilde Foods, started raking in the cheddar by selling cheese spread with a similar taste. Levola brought claims against Smilde for infringing alleged copyright in the taste of Heks’nkaas.

In support of its claims, Levola wheeled out a culinary expert and cited well-aged precedent based on a 2006 case that had indicated the scent of perfume might be copyrightable. But Smilde shredded Levola’s arguments, noting that—no matter how Caerphilly Levola tried—it was unable to precisely articulate the taste it sought to copyright.

Levola’s claims—which made it all the whey to the Court of Justice of the European Union—met an unfortunate feta. Ultimately, despite advancing all Manouri arguments in its favor, Levola was unable to Provel that the taste of a specific cheese was a form of artistic expression subject to copyright protection.

The European Court’s November 13, 2018, decision was sharp, letting Levola know that “the taste of cheese is nacho copyright” and that Levola was not entitled to jack.

Because the decision—which held that European copyright laws preclude the copyright protection of the taste of a food product—was issued by an EU court and not a Dutch national court, its precedent may curdle the hopes of food processors Paneer and far.

We know you may be feeling bleu, and you may think you Camembert to go on knowing that your cheese’s taste is likely not copyrightable. But we have gouda news for you: The recipe may (under certain circumstances) constitute a trade secret, or the production methods for your food products could be eligible for patent protection.

If you have questions about copyright protection in your products, or what other forms of intellectual property protection may be useful to you, please contact the authors of this client alert.