Does Perfume Copyright Decision Pass the Smell Test?

Courts worldwide have held that an odor itself is something that belongs to nature and is not copyrightable. But in a recent decision, a Dutch court said Lancome's Tresor perfume was a distinct combination of ingredients "concrete and stable enough to be considered an 'authored work.'" Lawyers for Lancome called the ruling revolutionary, but some experts say it's a mistake that could have grave consequences beyond the cosmetics industry.

X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Like a rose, a perfume by any other name would smell as sweet. But actually selling a cheap knockoff under another name is a copyright violation, a Dutch court says. The decision by the appeals court in Den Bosch granting France-based Lancome a copyright on its “Tresor” perfume could reverberate throughout the cosmetics industry and beyond. The Dutch maker of cheap perfumes that lost the case, Kecofa BV, vowed Thursday to appeal the decision to the Dutch Supreme Court and European courts. Lancome’s actions are “the equivalent of someone introducing a fancy strawberry jam and then trying to prevent anybody else from selling a cheaper version,” Kecofa spokesman Leon Meels said. Until now, perfume makers have fought cheaper copycats by keeping their formulas secret or occasionally by patenting their chemical composition as an “invention.” Courts worldwide have held that the odor itself is something that belongs to nature — not to any person or company — and is not copyrightable. But in a decision June 21, the court said Tresor was a distinct combination of ingredients “not only measurable by the senses but also, in the court’s judgment, concrete and stable enough to be considered an ‘authored work’ as intended in copyright law.” In other words, the perfume is more like a painting than a product. Lawyers for Lancome, which won the right to block imitators from marketing cheap knockoff versions in the Netherlands, called the ruling “revolutionary.” Some competitors and experts dismissed it as a mistake that could have grave consequences in an industry that racked up euro170 million (US$208 million) in retail sales in the Netherlands in 2003, according to the Dutch cosmetics industry group NCV. Charles Gielen of the law firm NautaDutilh, which represents Lancome, said it was right that perfume should be considered a creative work, despite relying on commonly known ingredients. “Paintings also are made of a mixture of colors, which are known components, and poems are made up of normal words,” he said. “It’s the combination that’s artistic.” The court ruled that Kecofa, which makes a perfume called “Female Treasure,” had infringed Lancome’s copyright and must hand over all profits it has made on the perfume since 1995. Female Treasure is sold at Dutch shops and markets for around euro4-6 (US$5-7) for a 100-milliliter bottle — at a tenth of the cost of Tresor. Thomas Field Jr., a professor at Franklin Pierce Law Center in New Hampshire and a former chemist, said the ruling could be “bad, bad, bad, from a public policy standpoint.” “Where does it stop? Will new wines, or blends of spices and other condiments be copyrightable? If the law of the case stands, lawyers will be mining its golden ambiguity for many years,” he said. A patent would be a more appropriate way for perfume makers to protect their product, he said. Patents grant exclusive manufacturing rights for 20 years, rather than 100 years or more for a copyright. The Dutch court relied heavily on the testimony of experts hired by Lancome whose chemical analysis showed that Female Treasure contained 24 out of 26 chemical elements in common with Tresor — swapping only musk for a cheaper substitute. Kecofa had 70 employees and sales of euro10 million (US$12.3 million) in 2002. Lancome is owned by France’s L’Oreal, with 50,000 employees and sales of more than euro14 billion (US$17.2 billion) in 2003. Kecofa’s Meels said Lancome’s chemical analysis was misleading, since most perfumes contain similar ingredients. “We should have presented our own experts, but we didn’t have a lot of time to prepare and to be honest, we underestimated how seriously the court would take their arguments,” Meels said. Meels said that the company’s profit margins are so small that the cost of paying an extra accountant to figure out its past earnings from Female Treasure would likely be greater than the earnings themselves. The court also ruled that Kecofa should also pay around euro25,000 in court fees and other costs. Gielen said Lancome — which sells seven other perfumes in the Netherlands, including Poeme, Miracle and Magic Noire — will now attempt to enforce copyrights on its other fragrances and against other knockoffs. One expert in copyright law, University of Amsterdam professor Gerard Mom, said the ruling would likely stand, at least in the Netherlands. While perfume has never been granted a copyright before, he noted that other products, such as ornate chairs or stylized telephones have occasionally been copyrighted in the past. But he said that judges in other European countries may well reject the idea that Tresor or other perfumes are worthy of a copyright. “Opinions about what art is are very subjective,” he said. Copyright 2004 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Trending Stories

 

Featured Product

Global Briefing

A weekly, curated selection of our international content from around the globe, across the business of law, in-house, regulatory, technology and more, with expert insights from our senior editors.

Learn More

More from ALM

 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Privacy Policy

About Us / Contact Us / Site Map / Advertise With Us/ Customer Service / Terms of Service/ FAQ / Privacy Policy

Publications

Law Topics

Rankings

More

Law.com

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.