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20 February 2013
The commonly held idea that perfumes, recipes and other formulae are the mere sum of their ingredients, and are therefore not protected under copyright law, was recently rejected by the Court of Appeal of Den Bosch in the Netherlands. In a groundbreaking decision, the court ruled that Lancôme’s perfume ‘Trésor’ was copyright-protected. Physicochemical analysis and the laws of probability played a big role in the decision, which has drawn worldwide attention and reports in hundreds of newspapers, from Taipei to Tallahassee.
As Lancôme’s counsel, NautaDutilh succeeded in convincing the court that the blend of ingredients constituted an original work of authorship and that the cheap perfume called ‘Female Treasure’ produced by defendant Kecofa BV could only be classified as nothing more than a deliberate imitation. The importance of this case is twofold. Not only is it a justified recognition of the creativity involved in making a perfume, but it also shows that IP law is still open to change, and that with thorough legal analysis, in combination with sophisticated research methods, hitherto unthinkable solutions can be reached.
The boundaries of IP have always been a topic of fiery debate. Complaints such as “Where does it all end?” and “It’s only about the money” are never long in coming whenever protection is claimed, and obtained, for ‘newcomers’, such as colour and sound trademarks, software patents and now perfume copyrights. However, it is a misconception to think that protection under IP law should be limited to what is currently protected. The important question is: what is capable of being protected? With creativity being the criterion, whenever scientific and technical progress make it possible to expand protection for original creations, practitioners and judges should not hesitate to act accordingly.
An unoriginal painting does not enjoy protection, but an original perfume deserves it. In an article about the case (The Guardian, 24 July), Cyril Bernet, scientific director of the International Perfume Institute in Versailles, was quoted as saying: “The work of a parfumeur is the work of an artist, choosing from a vast palette of, say, 3,000 options and coming up with an original creation. A top nose may create four or five big new scents in his career – imagine how he feels if that work is pillaged by some guy in a lab who takes three months to synthesise and copy something it’s taken a lifetime’s experience to produce.” A convincing argument.
In this case, the Dutch court circumvented the discussion about the highly subjective and fleeting character of smells by ruling that the copyright protection of a perfume extends only to the scent-generating substance that is bottled and sold on the market.
The court stressed that the smell of a perfume is too transient and too variable to be copyrighted.
This was probably the first time that physicochemical analysis was used in a copyright lawsuit. It showed that the two perfumes had 24 olfactory components in common and that there were only two components of Trésor that had not been used by the defendant.
Also, the only component that was unique to the defendant’s perfume was Gamma Dodecalac-tone, a cheap substitute for the Musk Keton used in Trésor. The probability of a perfumer other than Lancôme independently and coincidentally creating a perfume containing 24 of the 26 olfactory components of Trésor was shown to be about the same as that of winning the lottery every day over a hundred years.
The highly creative process of developing this perfume was convincingly explained to the court, which decided that Trésor should be considered as having an original character bearing the personal imprint of its creator, thus entitling it to copyright protection in the Netherlands. In view of this and the improbability of the resemblance to Trésor being coincidental, the court ruled the defendant had deliberately and unlawfully infringed Lancôme’s copyright.
It would be too sweeping a statement to claim, on the basis of the above decision, that all perfumes are copyright-protected in the Netherlands. However, some perfumes are the original products of creative minds (or noses) and deserve the same protection against pillaging as other original creations.