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Copyright Nose No Limits

The name of a perfume is usually trademarked, the packaging may be protected trade dress, the text on the box may be copyrighted, and certain synthetic olfactory elements or even the bottle could be patented.  But the complex liquid inside the bottle -- the "juice" -- has usually been fair game for imitators.  Until now.

Back in February, a French court of appeal held that copyright law is applicable to fragrances.  The court found Dubai-based Bellure N.V. had copied a number of L'Oreal fragrances and ordered damages in the amount of 1.48 million euros.  (Merci to Kathleen Fasanella of Fashion Incubator for a heads-up on the case and to Pierre Breese of Chroniques de la propriete intellectuelle for most conveniently linking to the judgment.)  The decision relied on chemical analysis of the olfactory doubles, as well as the scent of the perfumes (yes, a smell test) and expert testimony.

L'Oreal won again earlier this month, this time before the Dutch Supreme Court.  That court also ruled that perfume could be subject to the same copyright protections as a work of art, ordering Kecofa B.V. to disgorge profits from its "Female Treasure," a knockoff of L'Oreal's "Tresor."  Kecofa, arguing that aromas are part of nature and should not be subject to IP protections, may appeal to the European Court of Justice. 

In the U.S. scents applied to other goods can serve as trademarks, and newly created or isolated aromas may meet the criteria for patent protection.  In order to maintain the distinction between useful inventions and literary or artistic works, however, copyright protection does not extend to either processes or useful articles -- and thus aromas that might be patentable are excluded from copyright protection.  Mere discoveries, e.g. natural scents, are not eligible for either patent or copyright protection. 

It remains to be seen whether the U.S. will follow the lead of the Netherlands and France and consider copyright protection for perfumes formulated by expert "noses," who choose among thousands of potential scent notes to create pleasing combinations.  Are perfumes more like recipes, which are generally unprotected (despite recent controversies), or musical compositions? 

For now, Designer Imposters and other imitators are safe under U.S. law.  But when in Europe, don't squeeze the juice. 

 

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Last month, Counterfeit Chic noted that cases in both France and the Netherlands had extended intellectual property protection to perfume, although the issue ultimately remained unresolved in France.  In today's New York Times, Elaine Sciolino fur... [Read More]

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Comments

Unfortunatly a recent decision of the French Suprem Court quashed these case-law by deciding that perfum cannot be protected by copyright (on the ground that perfum is not a cration in the sense of the copyright law but mere technical know-how...) (see for instance : http://breese.blogs.com/pi/2006/06/la_cour_de_cass.html#more)
Obviously this decision is broadly critized and open to criticism.
Fabrice (French IP lawyer)

Thank you, Fabrice! This should be an interesting battle.

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