The Lowdown: Heksenkaas

Bless you​
I’m not sneezing. It’s a Dutch-made spreadable dip with cream cheese and fresh herbs.

Sounds delightful. Why are we talking about it?​
It’s at the centre of a legal dispute. Heksenkaas’ owner has taken a competitor to Europe’s highest court for (allegedly) infringing on its copyright by making a product called Witte Wievenkaas that allegedly tastes identical. It presumably has the same ingredients and recipe, although we can’t verify this as we don’t speak Dutch.

Has the action been successful?​
No. The European Court of Justice has ruled that the taste of a food product is not eligible for copyright protection. Central to the ruling is that the court was not convinced that the taste of a food item could be classified as a copyright ‘work’ in the same way as films, music and art. In the case of a supermarket-sold cheese spread we’d probably agree with them.  

What are the implications for restaurants?​
It highlights that it’s extremely tricky for chefs and restaurant companies to stop people copying or riffing off their creations. Chefs - especially the sort that create very original dishes - have called one another out for copying dishes but there’s never been a successful legal action as far as we know. Perhaps the most infamous example is when British chef Robin Wickens pinched one of Wylie Dufresne’s dishes a decade or so ago.

Which was?​
It involved making prawns into noodles using a complex technique and serving them with smoked yogurt, paprika and nori. Wickens took a bashing on foodie forums but Dufresne - then running landmark New York restaurant WD-50 - didn’t pursue it. Wickens was cooking at a restaurant in Melbourne at the time, which would have complicated things as intellectual property laws vary from country to country.

Is it ever possible to patent a recipe?​
In the UK and US, yes. “But in the world of producing foods, it’s going to be a novel technique or process rather than a dish,” says Roy Crozier, partner and head of intellectual property at national law firm Clarke Willmott LLP. “It also needs to be substantially different from technique or process that has been come before it.” Dufresne may have had a case as the dish used at least one proprietary technique. Restaurant chefs hardly ever patent their techniques, but the Heston’s of this world possibly could if they were so inclined.

Right. So what’s to stop me opening a restaurant serving Zinger Tower Burgers. They aren’t particularly original creations…​
A restaurant would be ill-advised to put a ‘Zinger Tower Burger’ on the menu because KFC owns the registered trade mark for the word Zinger® in relation to food products. However, a competitor could probably copy the recipe and put it on the menu as a chicken tower burger, so long as they don’t steal the recipe itself e.g. through industrial espionage. “That would open them up to the law of confidence. If it’s simply a recreation based on that particular dish, KFC would likely have a tough time in court. The most likely legal route would be “passing off”, but for that to work they’d have to prove people thought they were buying something licensed by or otherwise connected to KFC. Look at how Aldi operates. Consumer’s know its products are designed to look like well-known brands, but crucially they don’t think they’re buying said brands. There’s no misrepresentation.”