The development of a perfume is undoubtedly a laborious and complex process. Despite the fact that most prominent fragrances are coming under fashion brands, those same fashion houses are rarely deeply involved in the actual creation process. In the usual scenario, a designer brand would commission the development of a perfume with a specified profile to a specialized fragrance company that is employing talented perfumers and chemists. Some examples of such perfume companies are Firmenich, Symrise, Givaudan, IFF.
The nose behind a perfume – the master perfumer, tries a huge number of variations where a multitude of aroma chemicals and raw materials are mixed together into complex compositions. Some of the raw materials used in perfume compositions can be really expensive. Such is the case with oud (agarwood essential oil) where the price for a kilogram can easily exceed 1000 dollars and also ambergris – traded for more than 27 dollars per gram.
The end result of the work of a perfumer can be strikingly different based on the concentrations of the used ingredients, the way they interact with each other as well as the sequence in which they are added. Typically, the final result would resemble a harmonious olfactory pyramid consisting of top notes, middle notes and base notes. Based on the craftsmanship and the creative mastery of the perfumer all those notes should be blended seamlessly together in a single body. The nose of the fragrance wearer and those around should first experience the initial blast of the top notes. After some time, the drydown of the perfume would start slowly revealing the middle notes and their transition into the heart notes. Nevertheless, there are also perfume compositions which offer more of a linear experience without too much transition in the notes.
It is without doubt that the composition design and the subsequent realization of such an olfactory journey is far from being an easy and menial task. On the contrary, sometimes the effort and creativity involved could easily exceed those demonstrated in the creation of a painting or a musical work. This, naturally, raises the question whether a perfume can benefit from copyright protection in the same way as a musical or visual work would. That question is also highly relevant due to the growing market trend of perfume-clones. These are fragrances that imitate and copy the formulas of already existing successful perfumes, thus, trying to derive undue benefits from their market success and popularity.
In order to answer that question of copyrightability under the statutory framework of the EU, we will first need to carefully examine the applicable legal requirements.
Under EU law, a subject matter needs to satisfy two requirements in order to be protected under copyright.
First, it needs to be an expressive object, i.e. the requirement of a “work”. This requirement is related to the general copyright principle that copyright does not protect ideas but only their specific expressions. It has to be noted that the European Union is a party to the WIPO Copyright Treaty and accordingly, it is obliged under Article 1, paragraph 4 of the treaty, to comply with Articles 1 to 21 of the Berne Convention. In this sense, the scope of protected works under copyright as per the Berne Convention includes literary and artistic works. Article 2, paragraph 1 of the Berne Convention establishes a very broad definition for those protected works – “the expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression”. Then the text of the provision goes on with a non-exhaustive and only exemplary list of objects that fall under the umbrella of literary and artistic works.
Second, the work in question must be original – the requirement of originality. Under EU law, a work is deemed to be original if it is the author’s own intellectual creation. In its case law the Court of Justice of the European Union (CJEU) further elucidates the concept of originality in the following way – “As stated in recital 17 in the preamble to Directive 93/98, an intellectual creation is an author’s own if it reflects the author’s personality. That is the case if the author was able to express his creative abilities in the production of the work by making free and creative choices” (Judgment of the Court of 1 December 2011, Eva-Maria Painer v Standard VerlagsGmbH and Others, Case C-145/10, paragraphs 88-89). Therefore, for a work to be original the author must have been able to express his creative abilities in the production of the work by making free and creative choices so that in some way the final product bears the mark of its creator.
When it comes to perfumes, it would seem that both requirements can in principle be satisfied. First, the expressed object in the case of a perfume would be the scent (the fragrance) that is perceived through the olfactory sense. As mentioned, under the Berne Convention the definition for an artistic work is quite broad and a perfume might certainly fit into it – “… every production in the … artistic domain, whatever may be the mode or form of its expression”. As for the second requirement, it is without a doubt that the subject matter in question, taking into account the relevant technical rules and constraints, allows for free and creative choices in the development of a perfume. The huge variety of perfumes and perfume styles (amber fragrances, floral fragrances, oriental fragrances, gourmands, woody fragrances, citrus fragrances, aquatic fragrances, etc.) is a clear testament to the possibility for free and creative choices.
Any analysis on the question at hand, however, should be incomplete without also examining the positions of the courts across the European Union. And this is where the picture becomes increasingly complex.
The question of copyright protection for perfumes was raised before the Dutch Supreme Court back in 2006 in the famous case of Lancome v Kecofa. One of the key questions raised was whether the perfume Trésor by Lancome was eligible for copyright protection as Lancome was alleging that Kecofa came up with a perfume clone – Female Treasure, which was purportedly infringing the copyright in the original Tresor. The Dutch Supreme Court reached two conclusions on the matter. First, the scent of the perfume Tresor by Lancome was a work which by its nature was eligible for copyright protection. In particular, the scent was not only sensory perceptible through the olfactory sense, but also sufficiently concrete, stable and objectively identifiable in order to be regarded as a work within the meaning of the Dutch Copyright Act. Second, the court ruled that the work in question satisfied the requirement of originality on the basis of the documentary evidence presented by Lancome which pointed to the fact that the perfume was the result of a creative process that led to a specific combination of components with the aim to create a unique perfume. Finally, relying also on the findings of an expert report, the court ruled that the perfume Female Treasure was an unauthorized reproduction of the copyrighted fragrance Tresor and accordingly, Kecofa infringed the copyright of Lancome.
Again in 2006, the question of copyright protection for perfumes also reached the French Supreme Court (Cour de Cassation) in the case of Bsiri-Barbir v Haarmann. Interestingly enough, the outcome was exactly the opposite. The position of the court was that a perfume was not a “work of the mind”, i.e. not a creative work, but a result of the simple application of know-how. In view of the court, the creator of a perfume was not an author but a mere craftsman relying on an industrial process. Secondly, the court postulated that a perfume does not represent a form capable of being protected under copyright. This line of argumentation is related to some of the innate chemical characteristics of perfumes. In particular, they evaporate and dissipate, they react differently to different types of skin and also on an olfactory level they are perceived differently by different people (i.e. subjective perception).
As we can see, the national courts in Europe take diverging stances on the question of copyright protection for perfumes. In such an unclear judicial ambiance, some additional guidance can be derived from a 2018 judgement of the Court of Justice of the European Union (CJEU, the Court) – Case C-310/17 Levola Hengelo v Smilde Foods. Despite the fact that this case dealt with the taste of a food product instead of a smell of perfume, some of its conclusions are highly relevant to the question at hand.
In the above case, Levola was alleging that with the production and sale of the cheese product ‘Witte Wievenkaas’, Smilde purportedly infringed the copyright of Levola in the taste of Heksenkaas – a spreadable dip containing cream cheese and fresh herbs. Levola was taking the position that copyright in a taste referred to the “overall impression on the sense of taste caused by the consumption of a food product, including the sensation in the mouth perceived through the sense of touch”. It is important to note here that in its argumentation before the courts Levola explicitly relied by way of analogy on the judgment of the Dutch Supreme Court in Lancome v Kecofa, recognizing the possibility that a scent of a perfume can be protected under copyright.
The specific question that the CJEU had to answer in the Levola case was whether EU Directive 2001/29 (the Infosoc Directive) must be interpreted as precluding the taste of a food product from being protected by copyright.
What was interesting in the rationale of the CJEU in its judgement was the introduction of a third requirement for copyright protection under EU law. It comes alongside the pre-existing requirements of expression and originality. This third requirement is the condition that in order to be a work that is protected under copyright, the subject matter in question has to be expressed in a manner which makes it identifiable with sufficient precision and objectivity. In the view of the Court, this was not the case with the taste of a food which cannot be pinned down with precision and objectivity. As per the opinion of the CJEU, the taste of a food product would be identified on the basis of subjective and variable sensations and experiences. They would depend on factors specific to the person tasting the product concerned, such as age, food preferences, consumption habits, the environment or the context in which the product is consumed. Consequently, the conclusion of the CJEU was that the taste of a food product cannot be classified as a ‘work’ within the meaning of Directive 2001/29 and therefore, it is precluded from being protected under copyright.
Nevertheless, the CJEU still left the door open for the possibility that in the future due to technological developments this conclusion could be modified. In particular, the stance of the CJEU was that it is not possible in the current state of scientific development to achieve by technical means a precise and objective identification of the taste of a food product so that it can be distinguished from other products.
It can be presumed that by way of analogy the conclusion from the Levola case would also apply to the scent of perfumes and they would also be precluded from copyright protection under EU law. It would not be the unstable and evanescent nature of fragrances that precludes their protection. The CJEU explicitly mentions in Levola that the fact that an expression is not in permanent form shall not preclude it from protection. In turn, it is once again the third requirement for an expression which can be identified with sufficient precision and objectivity that would likely fail perfumes. An additional hint in that direction is the fact that the CJEU postulates in Levola that the mentioned third requirement would be a priori satisfied by literary, pictorial, cinematographic and musical works. Therefore, it seems that a different treatment is prescribed to works that are perceived visually and aurally (through sight and sound) than those that are to be perceived through smell and taste.
The immediate impact on the preclusion of copyright protection for perfumes would be the limited legal recourse against perfume clones that are copying pre-existing scents. Nevertheless, perfumes would not be left without IP protection. Fragrance creators can still rely on the legal regime for protection of trade secrets or unfair competition law. It is interesting to note that in general there is no requirement to list individually the specific fragrance ingredients on a perfume box. Instead, perfume makers typically use the cryptic term “fragrance (parfum)” on the list of ingredients. Another route would be patent protection when it comes to perfume formulas (i.e. the specific mixture of ingredients). The bottle of a perfume, its packaging, its name and logo can be protected under trademark law as either word marks, figurative marks or three-dimensional marks. Perfume bottles and packaging can also be protected through the registration of an industrial design.
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