Europe’s top court dealt the food industry a blow on Tuesday as it dismissed an attempt by a Dutch cheese maker to copyright its cream cheese, saying that the taste of a food product does not qualify for copyright protection.

Dutch company Levola Hengelo, maker of a cheese spread called Heksenkaas (witches’ cheese), took rival Smilde to court for making what it said was a copy of its product and hence infringed its copyright in the taste of the cheese.

The Dutch court subsequently sought guidance from the Luxembourg-based European Court of Justice (ECJ).

ECJ judges backed the July recommendation of the court adviser.

“The taste of a food product is not eligible for copyright protection,” the ECJ said.

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Unlike a literary, pictorial, cinematographic or musical work, the taste of a food product cannot be identified with precision and objectivity, judges said.

Furthermore, taste depends on the person tasting the product, age, food preferences and the environment and context in which the food is consumed, the court said.

Heksenkaas, now a subsidiary of Dutch food maker Salad Signature which bought it from Levola Hengelo early this year, said it was disappointed with the court ruling.

“We find it a pity and incorrect that the creative expression in food and perfumes do not have copyright protection and that everyone can make a copy of it,” said Heksenkaas director Michel Wildenborg.