Following a claim by a Dutch producer of a particular cheese named “Heksenkaas” the European Court of Justice was asked whether the taste of a food can be granted protection by a copyright. To that purpose the Court had to consider whether a taste could be considered a “work” in the sense of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society. The two essential conditions require first a work to be the author’s own intellectual creation and secondly to be something which is the expression of the author’s own intellectual creation. Moreover, the interpretation of copyrights should be in line with the Berne Convention for the Protection of Literary and Artistic Works making the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity. In the view of the Court, a taste is however rather identified by subjective and variable markers such as sensations and experiences influenced by age, food preferences and consumption habits, as well as on the environment or context in which the product is consumed. This made the Court conclude a taste cannot be considered a work that can be protected by a copyright.
European Court of Justice, C‑310/17, Levola Hengelo BV v Smilde Foods BV (13 November 2018) - link