GUEST BLOG - THE SWEET SMELL OF SUCCESS: COPYRIGHT IN PERFUMES ESTABLISHED IN NETHERLANDS

Today’s guest blogger is Piter deWeerd, an associate with the Dutch law firm NautaDutilh. He brings exciting news of how smells can now be protected by copyright in the Netherlands – read and enjoy: 

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 a Dutch court of appeal. In what can be described as an internationally groundbreaking decision, the court ruled, on the basis of physicochemical analysis and the laws of probability, that Lancôme's perfume 'Trésor' was copyright-protected.
 
Lancôme's lawyer, Professor Charles Gielen, a partner at the Dutch law firm NautaDutilh, succeeded in convincing the court that the blend of ingredients constituted an original work of authorship and that the cheap perfume produced by the defendant could only be classified as nothing more than a deliberate imitation.
 
This was probably the first time that physicochemical analysis was used in a copyright lawsuit. In this case, the analysis 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. In addition, the only component that was unique to the defendant's perfume was Gamma Dodecalacton, a cheap substitute for 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 period of a hundred years.
 
The Trésor perfume was considered by the court 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 concluded that the defendant had deliberately and unlawfully infringed Lancôme's copyright.
 
It should be noted that the court ruled 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 case shows that intellectual property law is still open to change and innovation. It is NautaDutilh's belief that thorough legal analysis in combination with sophisticated research methods can lead to solutions that hitherto seemed unthinkable. 

 
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