Disturbingly Sweet Smell From Europe

By Jon Lee Andersen

            I recently read an article describing a decision from a Dutch court in a very puzzling copyright case.  According to the article, Lancôme, a division of L’Oreal, has been granted copyright protection for its perfume “Tresor”.  Not for advertising or promotional materials touting Tresor, but for the perfume itself.  The court, in some fascinatingly original thinking, determined that the combination of ingredients were concrete enough to be considered an “authored work” and thus protectable under the copyright laws.  The court felt that there was more to perfume than meets that which is measured by the nose.  The decision is a rather revolutionary departure from decisions of courts around the world, who have traditionally viewed perfume as an odor which belongs to both no one and to everyone.

            The traditional methods employed by perfume makers to protect their scents has been to patent the formula as an  invention, or to keep the formula secret, a la Coca Cola. This latter approach allows some legal protection under the “trade secret” laws of countries.  The patent method of protection, while a good one, because there is a solid body of law which backs patent protection universally, has the distinct disadvantage of ending after 20 years or so.  A copyright can last more than 100 years. A few scents are also protected under trademark registrations, which offer the best of all worlds, since this protection has no set time limit.

            Commentators and quoted sources in the article discussed the case in terms of its similarity to copyright protection of paintings and poems.  Both are made up of common ingredients, paint colors and words, but the way in which they are assembled and put together is what makes the art that is protected by the copyright laws.  This same unique blending of common ingredients to create various scents, the supporters of the case argue, is no less creative and artistic that that of the painter or author, and is deserving of the same protection. Opponents ask where this case could lead us. Are blends of wines or other foodstuffs now copyright protectable?

            It is possible that the case result was the product of an aggressive prosecution by Lancôme and a rather weak defense by Kecofa BV, a Dutch manufacturer of cheap “knock off” fragrances.  There are still appeals ahead for the case, so the decision is not yet cast in stone, nor is there any certainty that its results will be followed outside of Holland, but it will serve as a precedent for a new and novel way of protecting a company’s products.  

Think of the decision like this:

Pity the poor mademoiselle
With limited funds for her smell
Since she can’t circumvent
Full price for her scent
She’ll now be just “au naturel”

© August 2004 Jon Lee Andersen