The perfume industry has always used trade marks to protect their creations. However, due to the progress of the technical equipment in the field of smell analysis, the infringers not only copy the brand names. They also copy the aesthetic intellectual creation: the fragrance of the perfume itself. Even worse, they sell this fragrance under another brand name. In such a case, trade mark law is useless. In Switzerland, the courts have not yet examined whether a fragrance of a perfume can be protected by copyright.
Swiss Copyright law protects artistic intellectual creations, irrespective of their value or purpose. For practical reasons, it is obvious that copyright can only protect a creation from the time it can be perceived. The olfactory message of a perfume is perceived by an emotion through the sense of smell. It is true that this perception might be different depending on the recipient. However, the same applies in case of abstract art creations. Some opponents to the protection of perfume also argue that it is temporary and unstable. However, this argument could also be invoked about music, which is clearly protected by copyright. Finally, the industrial reproduction of a perfume is not an obstacle. Works of applied art, for example Le Corbusier chairs, are also reproduced industrially and can be protected by copyright. Therefore, provided it shows an individual character (originality), in our opinion, a fragrance of a perfume is clearly protected by copyright.
The Supreme Court of the Netherlands recognised it for instance in 2006. By contrast, the French Supreme Court refused copyright protection to the fragrance of a perfume. In its decision dated 10 December 2013, it did not follow its previous case law according to which perfume is an industrial product. It ruled rightfully that the fragrance of a perfume might constitute an intellectual creation. However, it denied copyright protection, arguing that the fragrance of a perfume cannot be identified with sufficient precision. In our opinion, the French Supreme Court raised the right issue, but unfortunately gave the wrong answer.
Representing the fragrance of a perfume is indeed difficult. This representation issue also appeared as an obstacle for the registration of olfactory trade marks. In the absence of a registration requirement, the problem appears later, when a court has to rule on infringement. However, it is possible to overcome this. An expert in perfumery is able to describe the fragrance of a perfume in the specific language used in the profession. Moreover, as mentioned, some significant improvements were made in the field of technical equipment used to describe fragrances. These methods are not perfect, but they are sufficient for infringers to copy the fragrance. Therefore, they should also help the right holders and we expect that Swiss courts would recognise the protection of perfumes by copyright.
Bird & Bird have a cooperation agreement with Swiss law firm BCCC advocats and we would like to thank Pascal Fehlbaum for his contribution.
BCC Attorneys at Law, Lausanne