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Passing the Smell Test

While Dutch and French courts have flirted with the idea of copyrighting fragrances (see here and here), England is having none of it.  In a decision handed down Wednesday, a London court confirmed, "It is common ground that it is not an infringement of copyright in the United Kingdom to manufacture a perfume that mimics the smell of a successful fragrance."  (A scent can in theory, however, be protected as a trademark under U.K. law.)

Cosmetics giant L'Oreal nevertheless succeeded in some if its trademark infringement claims on the basis of the smell-alikes' packaging and use of the plaintiffs' trademarks to compare the original and knockoff products.  Bellure NV, the first named defendant in the case, informed the court that it has ceased trading after losing similar cases elsewhere. 

Olfactory creativity, it seems, is best protected by its visual and verbal avatars.


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