It smells !

On January 25, 2006, the Paris Court of Appeal held that perfumes are eligible to copyright protection.

For the Judges, perfumes can be identified through their smell architecture, and their unusual combination of essences, performed in very specific combinations, may show the creative work of their author. Several perfume companies sued BELLURE NV for, inter alia, copyright infringement because of the reproduction of the perfume smells such as DRAKKAR NOIR or ACQUA DI GIO among others, which were traded under different names.

In 2004, the first degree Court regarded a perfume composition as a music score.

However, the claim had been rejected because it lacked consistence for the Judges. Extensive evidence of infringement have thus been brought before the Court of Paris (physic-chemical analysis revealing 50 common elements to the two smells, sensorial tests performed amongst the public, expert report by a professional nose, chromatography in gaze phase, ).

The Court then granted an award on costs of 1.360.000 euros to the plaintiff ! The extension of copyright’s ground to perfumes would enable to avoid a protection which would depend on a mix between the packaging, the name and the smell.

It would also come to the rescue of the difficulties in obtaining a trademark registration for olfactory signs. This position may however have negative effects. The possibilities of being regarded as infringer are increased. Claims between perfume companies may well see their number growing shortly. The contractual provisions with the noses should also be optimized and such noses will now certainly ask to be paid more than before in light of this new case law. Lastly, a perfume smell that would be regarded as NOT original enough to be protected under copyright would certainly run the risk to see multiple copies emerge.

On June 13, 2006, a decision retained that the creator of a perfume could not receive remuneration under copyright law. As this decision was issued by the High Court, the question is settled as far as perfume creators are concerned. But the question remains open as far as counterfeiting is concerned.

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