Does a Rose by any Other Name Smell as Sweet? A Discussion of Whether Perfume can be Protected under Intellectual Property Law from Smell-a- Likes, and Whether it Should be?
| Author | Jasmin Eames |
| Pages | 146-168 |
[2011] Southampton Student Law Review Vol.1
146
Does a Rose by any Other Name Smell as Sweet? A
Discussion of Whether Perfume can be Protected
under Intellectual Property Law from Smell-a–
Likes, and Whether it Should be?
Jasmin Eames
Currently there is no model of protection. English intellectual property law
should protect perfume. Patents offer monopoly protection, and trade marks
can be renewed indefinitely, making them the more advantageous of choices;
due to the nature of perfume but neither is appropriate. The method of
protection most appropriate for perfume is copyright. Perfume should be
regarded as an „artistic work‟, as per s.1(1)(a) of the Copyright, Designs and
Patents Act 1988 (hereafter CDPA), for its creation involves an extensive
amount of skill and craft. A comparative look to the continent is key to this
discussion. The Supreme Court of the Netherlands in Lancôme v Kecofa
1 held
the scent of a perfume could be copyrighted and making a smell-alike
constituted an infringement. The Cour D‟Appel in the French case of L‟Oreal v
Bellure2 made a similar judgement, although the Cour de Cassation in a
separate, later case, Bsiri-Barbir v Haarmann & Reimer3, ruled the opposite.
It is shown that the judgement in Lancôme v Kecofa was correct and should
be followed in English courts if similar facts arose.
Introduction
Problem
veryone in the industry knows that the first twenty bottles of IFF‟s
perfumes are bought by IFF‟s competitors‟. 4 Perfumes are easily
reverse engineered using the right tools or by the right people.
1 Kecofa B.V. v Lancôme Parfums et Beauté et CIE S.N.C [200 6] E.C.D.R 26
2 L‟Oreal SA v Bellure NV [2006] E.C.D.R 16
3 Bsiri-Barbir v Haarmann & Reimer [2006] E.C.D.R. 28
4 Burr C, The Perfect Scent: A year inside the perfume industry in Paris and New York,
(Henry Holt, New York, 200 8)
„E
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Per fumers (those who create perfumes) are highly skilled in identifying
individual ingredients just by their scent, and recreating classic perfumes from
smell only is part of their training.
5 Furthermore the invention of the gas
chromatograph in 1952, a machine that can analyse the molecular
composition of a perfume and identify all the ingredients, means that any
perfume can be easily recreated and imitated.
And recreated and imitated they are: Katie Price‟s sickly sweet Stunning
smells almost identical to the expensive Miss Dior Cherie by Dior; the warm
muskiness of Narciso Rodriguez For Her can be found in Sarah Jessica
Parker‟s Lovely. The list of comparisons goes on. Further, manufacturers have
been known to purposely copy expensive perfumes and sell them at a fraction
of the price, but under a different name so as to avoid liability for passing off.6
There are even websites which give instructions on how to recreate popular
perfumes at home.7
The common dominator between the activities above is: they are all legal. For
while a company can protect the name of their fragrance, the bottle it is
contained in and the packaging in which it is sold (namely through copyright
and trade mark); it would appear English law does not provide adequate
protection for the actual fragrance itself.
Perfume
What is „perfume‟?
Before this discussion can continue, it is most important to define what
modern „perfume‟ actually is: a highly scented liquid which is sprayed, dabbed
or splashed onto the skin. They comprise of three parts, called notes8. The top
note is the first impression of the scent. It fades into the heart note, the main
theme of the fragrance, evaporating finally into the base note- the last element
of the scent to leave the skin. Perfume, in its most basic form, dates back to
the Ancient Egyptians and Ancient Greeks.9 Today, the packaging, the brand
and the advertising of a fragrance can be just as important as the scent. While
a designer handbag can cost thousands, a designer perfume is a cheaper
alternative for those wanting a taste of luxury. As a direct consequence of its
accessibility, resulting in wide-ranging distribution and high pr ofit margins,
the perfume industry is worth billions worldwide.
5 The following books offer extensive inf ormation on the training of perfumers: Burr C, The
Perfect Scent: A year inside the perfume industry in Paris and New York , (Henry Holt , New
York, 2008); Irvine S, Perfume: The creation and allure of classic fragrances , (Crescent
Books, New York, 1995); Bari llé E and Laroze C, The Book of perfume, (Flammarion,
Paris/ New York 1995)
6 L‟Oreal SA, Lancôme Parfums et Beauté & Cie and Laboratoire Garnier & Cie v Bellure NV,
Malaika Investments Ltd [2010] EWCA Civ 535
7 One example:
October 2010]
8 Irvine S, Perfume: The creation and allure of classic fragrances, (Crescent Books, New Yor k
1995), 56
9 For a more det ail ed hi st ory of perfume see: Irvine ( n8)
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