On December 10, 2013, the Court of Cassation, the highest court in the French judiciary, confirmed the first judgment of the Court of Appeal of Nancy and its constant jurisprudence since 2006 that perfume is not eligible to be protected under copyright law. The case involved L’Oréal suing a company that made and sold products replicating those of its perfume division, Lancôme. While Lancôme offers Trésor, the rival launches La Valeur and so on. The case centered on the perfume, but the other elements of the products–trademark and packaging–were also touched upon.
In the decision, the court explained that “a form that can be perceived by the senses” (the olfactory sense in this instance) can only be protected as far as it is identifiable with enough precision to be communicated. It follows then that fragrance, which elaboration process is not a work of intellect, but rather of technical know-how, doesn’t have a form with these characteristics (identifiable, precise, communicable), and thus cannot benefit from copyright protection. In other words, fragrance is too subjective to be clearly defined.
The court’s concession that copyright protection would be in principle possible is good news, since previous decisions haven’t admitted this much. But this doesn’t alter the negative outcome, since precise and clearly identifiable are not terms applicable to scent. How can you pin down something that has no tangible form and evaporates before your eyes? One person may smell tuberose in Dior’s Poison, another may notice grapes, and yet someone else– strawberries. And all three of them would be right. (There is a vibrant debate on the ways to describe fragrance with absolute precision through analytical methods and sensorial analyses by professional perfumers, but it’s a new challenge.)
Some may argue that the lack of copyright protection is a detriment to the consumer. The fragrance industry is often described as “secretive” and “closed,” because the only way to safeguard the perfume formula is to keep the information private, or within the company. It worked until modern analytical methods developed enough to reveal the formula to an unprecedented degree. The moment a big launch lands on the market, its samples have already been analyzed by the competitors and perfumers have neat printouts on their desks. The legions of Angels and Coco Mademoiselles wouldn’t have been possible in the days when the only instrument for copying was the perfumer’s nose.
What we have is the worst of all outcomes: the overwhelming number of near identical launches as everyone tries to capture the success of the latest hit and a dearth of reliable information communicated to a consumer. We don’t know what is inside the bottle. We have to take the brand’s word for it that it’s worth the money and the industry’s promise that it’s safe for our health and environment. As the regulatory pressures on the US and European governments indicate, consumer groups aren’t willing to accept this uncomfortable position and the encroaching regulations threaten fragrance masterpieces more and more.
My first reaction when I heard the decision was of indignation–what do you mean that the creation of perfume is not a product of intellect? But at the same time, I doubted that a positive copyright decision would have averted the current ills of the industry. It would certainly encourage rival claims by numerous bodies involved in creating a fragrance, and the phrase “Pandora’s box” immediately comes to mind.
On the other hand, if perfumers had means to defend their work and lay claim on it, it would have a tremendous impact. But we’re far away from such a scenario, since perfumers don’t even own their formulas. Today the formula may not have copyright protection under law, but its ownership is clear–it belongs to the company that employs the perfumer. In some cases, the formula is also revealed to the client, which is how some big brands can reformulate fragrances without even having to consult the original creators.
The exception is the independent perfumers and those working as in-house creators for fragrance brands. Although it’s a small group within the industry, it doesn’t have to abide by the standard code of practice within large fragrance houses, silence and secrecy. Perhaps these voices should start framing the discussion.
This topic can be explored at length, but I would love to hear your take on this seminal decision or the general topic of copyright for perfume compositions.
Source: Cour de cassation, chambre commerciale, 10 décembre 2013, pourvoi n° 11.19872