In the world of luxury, fragrance is much more than just a scent: it is an expression of a unique identity, expertise, and creativity. However, legally protecting a fragrance remains a challenge, as its components (scent, formula, packaging, name) are subject to different legal regimes. This article explores the various avenues of protection available to secure olfactory creations.
Protecting the scent of a perfume
The fragrance is the essence of perfume, but paradoxically, it remains the most difficult component to protect legally. Unlike other tangible or visually perceptible elements, scent is not easily captured by traditional categories of intellectual property.
Copyright: no protection for fragrance
Article L.112-1 of the Intellectual Property Code states that “works of the mind, regardless of their genre, form of expression, merit or purpose” are protected by copyright. This provision opens the way to potentially extensive protection, including intangible creations, without any prior registration requirement.
Thus, copyright as defined by law does not exclude non-visual or non-material forms of expression. However, in practice, French case law takes a more restrictive view, particularly with regard to olfactory creations.
In a landmark ruling, the Court of Cassation held that “the fragrance of a perfume, which is the result of the simple application of know-how, does not constitute the creation of a form of expression eligible for protection as an intellectual creation” (Cass. com., Dec. 10, 2013, No. 11-19.872). This position is in line with established case law based on the idea that fragrance, as an olfactory sensation, does not have an identifiable and communicable form with sufficient precision, which is an essential condition for the granting of copyright.
This requirement has also been established at the European level in the judgment of the Court of Justice of the European Union (CJEU) of November 13, 2018, case C-310/17, Levola Hengelo BV v Smilde Foods BV, concerning the flavor of cheese. The CJEU stated that a work protected by copyright must be an original intellectual creation expressed in an objective, precise and sufficiently identifiable manner, thus excluding purely subjective sensations such as taste, as these cannot be expressed in a way that allows the protected object to be clearly and stably identified.
Smell marks: theoretical recognition
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