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Scents and Sensibility

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 further explores two conflicting French decisions -- is perfume "a work of the mind" or not?  Is the creation a a new fragrance the result of a "simple implementation of expertise" or something more poetic?

"It's an extremely open and controversial question," said Catherine Verneret, the lawyer for Bellure, the company that lost in the L'Oreal case.  "Perfume is not only a simple aesthetic creation.  It is also an assemblage of molecules, a technical solution to a technical problem."

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"When I write a perfume, the scents are the words," [perfumer Jean-Claude Ellena] said.  "And with these words I construct a story.  There is breathing, and there are transitions, just as in sentences.  Perfume, first of all, is a mental construction."

In reading the article, I wondered whether the courts in the divergent French decisions had been influenced as much by the facts and circumstances of the cases as by the copyright principle.  In the case won by cosmetics giant L'Oreal, the defendant was a perfume knockoff artist.  In the later case, a perfumer who had won an earlier case against her employer for wrongful dismissal unsuccessfully attempted to claim royalties for Dior's Dune, which she claims to have created. 

Do these cases represent a jurisprudential inquiry into whether an original fragrance may be subject to copyright, or a more instrumentalist protection of the industry?  Perhaps both, but the result so far is a lingering air of confusion.