Nathan A Adams IV is a Partner in Holland & Knight's Tallahassee office.
In Levola Hengelo BV v. Smilde Foods BV, Case C-310/17 (Nov. 13, 2018), the court of justice of the European Union ruled that the taste of a food product cannot be copyrighted or classified as a "work." Levola Hengelo argued that the production and sale of Witte Wievenkaas infringed its copyright in the "taste" of Heksenkaas and brought proceedings against Smilde before the Rechtbank Gelderland (Gelderland District Court, Netherlands). That court ruled that it was not necessary to rule on whether the taste of Heksenkaas was protectable under copyright law, because Levola Hengelo's claims had to be rejected anyway because it had not indicated which elements, or combination of elements, of the taste of Heksenkaas gave it its unique, original character and personal stamp. On appeal, the court of justice determined that it is not currently possible to achieve by technical means a precise and objective identification of the taste of a food product that enables it to be distinguished from the taste of other productions of the same kind, meaning that a food product cannot be classified as a "work" within the meaning of Directive 2001/29.
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