Sunday, March 16, 2014

Intellectual Property Protection for Perfumes

In December 2013, the famous French cosmetics company Lancome sued a man who was in possession of several counterfeit bottles of perfume at an open-air market in France, including a counterfeit of one of Lancome’s high-end bestselling perfumes, Tresor (Treasure). Lancome apparently cited article L. 112-1 of the French Intellectual Property Code (FIPC), which protects “all works of the mind, whatever their kind, form of expression, merit or purpose,” arguing that the resulting fragrance from the perfume expresses the creative input of the author, which thereby entitles it to protection under the law.

Unfortunately for Lancome, the Court of Appeals of Nancy ruled that a perfume is not copyrightable and so is not under the protection of the FIPC. The court explained that a fragrance is a work of technical know-how, and not a work of intellect. Perfume does not come in a tangible form that is identifiable, precise, nor communicable: the smell of perfume cannot be copyrighted because it is simply too subjective to be clearly defined.


Lancome argued that article L. 112-1 allows even the most mundane of objects to be copyrighted, provided that it was created by an “author.” However, the court decided that the “nose” that creates a perfume cannot be considered as an author. Additionally. under French law, only original works are subject to protection, but there is no clear definition of what “original” means in the context of perfumes. French courts decide on whether a particular work is original by looking if it bears the imprimatur or personality of its author. And with the scent of a perfume unable to codify the imprint or personality of the “nose” that created it, it cannot be protected by the FIPC and thus Lancome cannot ask the defendant for royalties from the sale of the counterfeit perfume.

 The difficulty in obtaining protection of perfumes is also an issue in Australia. Perfumeries have tried in Australia to obtain trade mark protection for various fragrances. Scents and smells are capable of protection as a trade mark if they function as one. The problem with perfumes is that the scents are entirely descriptive of the product: in other words, they are the product, rather than functioning as a "badge of origin" for the product. As the Australian trade mark examiners' manual puts it:

"The natural scent of a product will have no inherent adaptation to distinguish the goods. Into this category come goods such as perfumes and eau de colognes for personal use; essential oils for perfumery or cooking; the scent of cedar for timber products and herbal scents/essences for culinary use. These scents either form the goods themselves or are a natural attribute of the goods. The scent thus refers to the goods, and not to the trade source."

 Perfumes are a category of goods for which there is no facility to protect them, and no remedy for infringement. Perhaps this is why cosmetics houses go to such efforts in their packaging and other forms of branding, each being assets easily capable of IP protection.

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