Making Scents of Copyright at Christmas

Credit: Author

Since we are close to Christmas, I thought it would be appropriate to post a blog about a popular gift product that often finds its way under the tree at this time of year, and—as always—consider its copyright dimensions. That gift is perfume…fragrance…scent…eau de whatever.

This past summer, my wife and I spent a couple of glorious weeks in the south of France. Among the places we visited was the self-described “perfume capital” of the world, the town of Grasse. Grasse and perfume are synonymous. The perfume industry has been embedded there for many generations. The town sports the Museum of International Perfumery, and a private museum operated by the House of Fragonard. One can also view the perfume making process (a rather quick touristy once-over) and visit perfume gardens where plants that form the main ingredients for various commercial scents are displayed and identified. All in all, it makes for a scent-sational visit.

One of the activities used to entice visitors is the ability to create one’s own unique scent. This is done in the labs of enterprises like the House of Fragonard where scent-creation can be an individualized and personalised experience. A scent can be created for personal use, or become a pure commercial endeavour for celebrities and others who wish to create and market a unique scent under their own brand. If you wish to become a “perfumer’s apprentice”, the literature from the House of Fragonard offers a variety of activities;

“We will unveil how a perfumer or “nose” masters the art of fragrance creation while learning about the history of the perfume. You will see which raw materials are used and how they are extracted. Our perfumer teacher will assist you in every stage of the creation process, where you will be able to play with pipettes and beakers as a genuine chemist apprentice. Step by step with the help of different essences based on citrus family and orange blossom you will be able to compose your own customized eau de Toilette. (100 ml).”

Once you have created your own scent, the perfume house will keep the unique formula and register it to you so that you can order more in future. (My wife says that I already have my own scent, but that is another story. I doubt whether it is commercially-exploitable!) There are many travel blogs that talk about the experience of scent creation but I found this one quite helpful. I thought it would be pretty cool to create your own unique fragrance in a parfumerie, and if it was indeed a unique creation (albeit one done with a bit of help from the “nose”) why couldn’t it be protected by copyright like other creations or “expressions of ideas”? That question, it turns out, is very topical and the subject of much debate.

It seems pretty clear (to me at least) that there can be a high degree of individual creativity going into the production of a perfume, resulting in a unique product that could bring significant economic benefit to its author. Therefore, I would argue, the author/creator should be provided protection against copycats seeking to free-ride on their efforts—but it is not as simple as that. As we all know, copyright doesn’t protect an idea, it protects the expression of an idea. Just as copyright does not prevent anyone from painting a bowl of flowers, but may provide protection to an individual artist’s expression of that particular still life, so too the scent of roses or lilies could not be copyrighted. But what about a special formula that combined a pinch of lily, a touch of rose, a soupçon of lavender, a hint of bergamot and just a twist of lemon, all combined in a special way (equipment, sequence, timing, etc,) with the end result being something quite new? As an analogy, let’s look at cooking and recipes.

As I noted in an earlier blog, “What’s Cooking in the Copyright Kitchen”, copyright does not protect recipes that are mere lists of ingredients but yet almost all cookbooks (recipe books) are copyrighted. The US Copyright Office has a statement on its website that states that copyright does not protect “mere listings of ingredients such as those found in formulas, compounds or prescriptions”. That would seem to rule out copyrighting of fragrances from a US perspective, unless there is an additional element of creativity present in their composition. (Cookbooks are covered by copyright because they include “substantial literary expression” accompanying a recipe or formula.) US IP lawyers and academics have argued both for and against the position that US copyright law should encompass perfumes, although to date no such protection is provided, nor am I aware of any cases where the issue has been tested in US courts.

The same is not true in Europe, however, where there have been a number of cases in France and at least one in the Netherlands, with mixed results. The issue has arisen because of “smell-alikes”, commercially produced clones of expensive perfumes that sell for a fraction of the cost. In 2006 there was a landmark case in Holland in which the Dutch High Court ruled that a “smell alike” version of the Lancôme perfume Trésor, marketed by a local company at one-tenth the price of the original, infringed Lancôme’s copyright. Lancôme had tried to stop the competing product by arguing trademark and trade dress infringement but the Dutch company’s name for the product, Female Treasure, was ruled to be non-infringing. However the copyright infringement claim prevailed. The Dutch Court ruled that it was not the actual scent that was copyrighted, but rather the liquid containing the scent (in other words, a form of fixation, without which copyright cannot exist). As others have pointed out, the difficulty in copyrighting a scent per se is that a scent changes over time, is perceived differently by wearers of the scent versus non-wearers and can be affected by external factors, such as temperature, humidity etc. The liquid bearing the scent, however, can be analyzed and stays constant.

If the Dutch court ruling was seen as a copyright breakthrough, court rulings on similar issues in France have proven disappointing for advocates of copyrighting smells. Despite several French lower court rulings (including an Appeal Court ruling) that perfumes could be copyrighted, France’s highest court, the Cour de Cassation has determined the opposite. The Court is quoted as stating that perfume is not eligible for copyright protection because perfumes are the product of the application of purely technical knowledge and lack a discernable association with their creators. I am sure that a professional “nose” would disagree. But that setback has not stopped the advocates of having scent creation treated with the same degree of copyright respect as accorded to works of art, music or literary creations. While the big bang has yet to come in terms of a major breakthrough on copyright for perfumes, all is not lost as there are many other ways in which perfume creators can protect their product, for example through the use of trademarks, trade dress, even the unique shape and colour of perfume bottles as well as copyright in the advertising materials.

As for my own personalized perfume, I will just have to hope that it is so unique that no-one would want to copy it because, as Galimard (another parfumier that also produces individualized, on-demand scents) confirmed to me in an e-mail, “Up until now there is no possibility to copyright a fragrance formula. However please be assured that all formulas created at Galimard are kept safely with us and no one will ever have access to it.

That will have to do for now.

© Hugh Stephens, 2019. All Rights Reserved.

One thought on “Making Scents of Copyright at Christmas”

  1. Hugh, the consistency with EU law of the expansive view taken by the Dutch courts as to what can constitute a copyright work in the 2006 case that you mention must now be in question given the CJEU decision late last year in C‑310/17 (on a reference from a Dutch court) holding, essentially because it cannot be identified with sufficient precision and objectivity, that the taste of a food product cannot be protected by copyright under Directive 2001/29 and that national legislation cannot be interpreted in such a way that it grants copyright protection to such a taste.

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