To say perfumes are a chemical blend of airborne molecules that form a scent and nothing more would be simplistic. Perfumes are an accessory we daily “wear”; and are every inch a part of how others identify, associate, and perceive us. Indeed, they are a mix of existing molecular blends engineered to produce a particular unique scent. But the creative endeavor that goes into its production is no less deserving of copyright protection than any other art form.
Marketed side-by-side with these perfumes are their dupes, also called “smell-alikes”. In light of their recent popularity, the framework for copyright protection of perfumes created by designer-inspired fragrances has become a subject of legal inquiry.
Principally, for a work to be copyrighted, it must be authentic, creative, original, and expressed in a tangible form. A blanket application of this rule would therefore mean that fragrances — a product of a perfumer’s concoctive (and thus, creative) input — meet these criteria.
This notion, however, fails to hold up to legal scrutiny. Across the EU, jurisprudence on fragrance protection has grown enough to spark significant legal commentary, with the topic one to divide opinion. In this article, we pick out the critical aspects of this ongoing debate to show why copyright protection for perfumes remains elusive, even as copycat fragrances continue to proliferate the markets.
The rise of perfume “dupes” and “copy-cat fragrances”
The perfume industry has long faced a pricing problem1. The high cost of luxury brands places the most coveted fragrances out of reach for the average consumer.
It is this demand for more affordable alternatives that makers of dupe perfumes aim to meet. After all, buyers of all income levels purchase perfumes. Accordingly, dupe sellers anchor their value proposition on being a less expensive imitation of the best perfume brands.
For example, an average third-worlder may not be able to afford luxury perfumes like Maison Francis Kurkdjian’s Baccarat Rouge 540. But they can purchase Ariana Grande’s Cloud, which is significantly more affordable and is often noted for its identical scent profile to Baccarat Rouge 540.
It follows then that dupes largely mirror the chemical compositions of famous, high-end perfume brands in their formulations. Their scents are reproduced through reverse engineering along with a slew of other processes to present consumers with a cheaper alternative of, ideally, the same scent.
Implicitly, their market strategy would entail free-riding on the gains, goodwill, and associations that these luxury brands have earned. The competitive implication of this is sure to put brands at a commercial disadvantage in terms of sales. But beyond competition, this interplay may also give rise to possible legal infractions under trademark law and other IP legal frameworks.
To cover their legal bases, dupe manufacturers tend to get creative in their production process. They take extreme caution to avoid any potential breach of copyrights, designs, and trademark laws, while also looking to avoid the common law tort of passing off.
Of course, this means a busy legal department. However, the steep commercial gains provide more than enough to offset these costs. To add another layer of protection, they create their unique brand identity and claim in their marketing that they are an “imitation”, “alternative”, or “inspired by” an original brand to avoid passing off. Some of these brands are even by themselves registered trademarks.
Also vital is the distinction between dupes and counterfeits. Unlike dupes, counterfeits are a rather brazen attempt to pass off fake products as originating from well-known brands. Dupes, though unethical, are not illegal, in so far as they don’t share the name or logo of the original brand or use their trademark unlawfully — particularly, in a way that is deceptive, misleading, or creates confusion. Counterfeits, on the other hand, are illegal ab initio.
IP protection of perfumes
Over time, perfume makers have sought protection for their creations through various areas of intellectual property law.
Patent law can cover ingredients and perfume formulae. But the hurdles and costs of obtaining a patent make this option prohibitive. Even for larger perfume companies that can afford these expenses, the requirement to disclose a perfume’s formula — business-critical information that is better kept confidential — in exchange for twenty years of patent protection is hardly a shrewd value exchange.
As a result, many perfume companies have turned to trade secret protections or trademark laws. Still, successful legal actions based on trademark infringement in the sale of “dupe” fragrances are few and far between.
Do perfumes attract copyright protection?
The short answer is no. In principle, for copyright protection to cover a work, it must have evolved from a mere idea to an expression. In other words, it must be in a tangible form. This then shifts the focus of any copyright protection to the scent — not the chemical components/the formula.
Prima facie, the artistic process involved in creating a scent tallies with that of other works that may be eligible for copyright protection. Perfumers sort through a sea of chemical compounds, artfully blending and layering them in multiple proportions to derive a desired scent.
The French Court of Appeal in Sodete Bellure v. L’Oréal2 echoed this view. Refusing to be constrained by Article L.112-1 of the French Intellectual Property Code (FIPC)3, the relevant legislation on the matter created to protect “the rights of authors in all works of the mind, whatever their kind, form of expression, merit or purpose,” the court failed to see how the absence of “perfumes” on the list of works to be protected by copyright under the statute made it ineligible for protection. It went on to find that a scent is:
“the result of an intellectual research of a composer which appeals to his accumulated imagination and the knowledge to create an original bouquet of odorous products chosen for an aesthetic goal, and thus constituting a work of the mind.“
After more careful consideration, however, the limitations in making perfumes eligible for copyright protection begin to surface.4 One such limitation was cited in the French case of Bsiri-Barbir v. Ste Haarmann et Reimer.5 In this case, the Court of Cassation (the French Supreme Court) interpreting copyright protection in light of the same Article L.112-1 of the French IPC6, held that:
“the fragrance of a perfume, which arises out of the mere implementation of know-how, does not constitute the creation of a form of expression capable of being protected by copyright as a work of the mind.“
The imputation to be drawn from this reasoning is that perfumes are a composition of chemical compounds — which already exist in the real world — and thus hardly reflect the perfumer’s personality.
This position affirms an earlier 1970s judgment of the French Courts of Appeal in Rochas v. de Laire.7 Of course, one may argue that certain perfumes carry the imprint of their creators’ personalities. Take Chanel No. 5, arguably the world’s most famous perfume. It was showcased at a Paris exhibition, co-sponsored by the Chanel company8, as a reflection of Coco Chanel’s personality.
At the same time, it’s important to note that the couturière commissioned No. 5 in the 1920s from French perfumer Ernest Beaux. This raises the question: whose personality is truly captured in the fragrance—Chanel’s or Beaux’s?
All in all, perfumes are way too subjective an art form to be clearly defined, identifiable, or communicable by us humans. Indeed, we experience scents differently. For instance, one person might detect hints of vanilla in Tom Ford’s Tobacco Vanille, another might pick up on warm spices, while someone else could sense a smoky undertone — and both won’t be wrong.
This perspective leads the court to categorize perfumery as the product of industrial techniques rather than a true art form. The reasoning is that perfumes result from skilled craftsmanship rather than a purely creative intellectual process that reflects the unique imprint of the creator, which would have qualified them as original works.
Away in the Netherlands, the Dutch case of Lancôme v. Kecofa9 saw the Dutch Supreme Court take a progressive stance, holding that a perfume can, in principle, attract copyright protection, if we were to evaluate originality through a “subjective” lens rather than an “objective” one.
The court opined that authorship of a perfume does not need to be objectively new to receive copyright protection. Instead, it must be subjectively original from the perspective of its creator. At the same time, the court cited certain complexities in applying copyright rules to perfumes. A strict application of copyright law could lead to impractical outcomes, such as consumers potentially violating the perfumer’s copyright each time they use the fragrance.
While the Lancome case did well to recognize the artistry involved in perfumery, thereby finding it worthy of copyright protection, it failed to take into account certain difficulties.
Chief among these considerations is that it is not the intention of the framers of copyright law to make perfumers out of judges. Like the average man, they lack the sophisticated sense of smell to differentiate between scents. Many scents would be deemed to be alike, leading to more ‘false-positives’ in infringement cases, (matching scents with a different formula might infringe, whereas a same formula perfume with a slightly different scent might not) undue monopolies, and a higher barrier to entry in the markets.10
On a more philosophical level, another issue is that scents, just like taste, are a private sensation. They don’t have the public and communicative components that, for instance, audio and visual works have11. Since the private nature of this art form (you need to be within touching distance to experience or smell a fragrance) already makes it exclusive, “privatising” the work further by ascribing copyrights to limit the public from reproducing this art form may be well redundant.
Ultimately, the cracks in the legal framework for copyright protection of perfumes led the Advocate General to advise that certain exceptions be made if the court were to ascribe copyrights to perfumers.
Conclusion
Since the enactment of the Statute of Anne in 1710, which first established authors’ rights in their books, the range of what is considered copyrightable expression has broadened to include many other works.
At the moment, however, it is clear that copyright laws hardly contemplate fragrances. French courts have ruled that copyright cannot protect fragrances, despite the creative element. The point is that this intellection (the fragrance) cannot be perceived or communicated in a precise and unmistakable way.
The court in the Lancome case did well to admit the artistry required to create it, thus qualifying it for protection — at least to the extent that it is original. But even more commendably, it was wary enough to point out the conceptual and practical flaws that beset this theory.
These two truths can co-exist. It then follows that any worthwhile efforts at creating a workable framework for copyrighting scents must take account of these nuances. With the pronouncement being welcome news for pro-copyright perfumers, Dutch perfume brands would be wise to document the entire production lifecycle of their scent — from inception to its release into the markets.
Elsewhere, perfumers can rely on other IP models available to them, namely trademarks, trade secrets, designs (otherwise known as trade dress or get-up), and even copyright in marketing materials such as branding to preserve all the creative endeavors expended towards their olfactory masterpieces.
Endnotes
- https://www.ft.com/content/28b78daa-8f3d-4545-8661-40ec862f7ee3
- See Bellure v. L’Oréal, Cour d’appel [CA] [regional court of appeal] Paris, 4e ch. A, Jan. 25, 2006, D. 2006, at 580, J. Daleau, aff’g Bellure v. L’Oréal, Tribunal de Grande Instance [TGI] [ordinary court of original jurisdiction] Paris, May 26, 2004, D. 2004, at 2641, note Galloux.
- http://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000006278873&cidTexte=LEGITEXT000006069414
- https://www.5rb.com/case/loreal-s-a-v-bellure-n-v-and-others/
- See Isabelle Leroux, Can Fragrances Be Protected by French Copyright?, Apr. 26, 2007, http://www. twobirds.com/en/news/articles/2007/can-fragrances-be-protected-by-frcench-copyright
- http://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000006278873&cidTexte=LEGITEXT000006069414
- See Rochas v. de Laire, Cour d’appel [CA] [regional court of appeal] Paris, 4e ch., July 3, 1975, Gaz. Pal. 1976.
- https://www.forbes.com/sites/celiashatzman/2022/12/15/an-interactive-fragrance-exhibit-le-grand-numro-de-chanel-opens-in-paris/
- https://ipmall.law.unh.edu/sites/default/files/hosted_resources/IDEA/idea-vol45-no1-field.pdf
- See Kamiel Koelman, Copyright in the Courts: Perfume as Artistic Expression?, WIPO MAGAZINE (Sept. 2006), http://www.wipo.int/wipo-magazine/en/2006/05/article_0001.html.
- See Leon Calleja, Why Copyright Law Lacks Taste and Scents, 21 J. INTELL. PROP. L. 1 (2013). Available at: https://digitalcommons.law.uga.edu/jipl/vol21/iss1/2
