fragrance copyright: 1 post

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.

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