THE SCENT OF COPYRIGHT PROTECTION

The scent of copyright protection

The IPKat thanks Leonie Kroon, who was first with this item, as well as from Vivien Rörsch, Advocaat at De Brauw Blackstone Westbroek (this firm has prepared a neat little summary of the case, with comments by Tobias Cohen Jehoram) and from Piter de Weerd (www.Boek9.nl).

Last Friday the Dutch Supreme Court gave judgment in Kecofa v Lancome in the dispute between them over whether copyright subsists in a perfume. Leonie has summarised the matter as follows:

The key points are as follows:

- The Dutch Copyright Act contains a non-exhaustive list of things that can be a 'work' for the purposes of the act; the Supreme Court says there is no reason why a smell should not be included.

- To get copyright protection, a smell must be a creation that is visible to humans, with its ‘own’ and ‘original’ character and reflecting the personality of the creator.

- The Dutch Copyright Act does not protect a work when its ‘own’ and ‘original’ character only applies to that what is necessary for getting a certain technical effect. A perfume is not a work having a mere technical effect.

- The Supreme Court did not find it relevant that the human smell organ [the IPKat thinks this might just be the nose ...] has restrictions in distinguishing between different smells, nor did it find it relevant that the ability to distinguish between smells differs from person to person.

- Evidence of infringement of the work can be given on the basis of laboratory tests and panels of people asked to smell it. Judges will not be required to smell it for themselves in future cases.

- The Supreme Court was of the opinion that it was also not relevant that due to the specific nature of smells, not all provisions of the Copyright Act can be applicable to it. For instance the normal use of a perfume, which a user cannot be prohibited from, will due to its nature necessarily involve ‘distribution’ of the copyright work.

The IPKat remains sceptical as to whether this decision, and its French counterpart, have anything to do with copyright at all; he wonders what Victor Hugo, founding father of the Berne Convention, would have made of it and considers that this sort of creation is more appropriately protected by unfair competition rather than by author's right.

How to make your own perfume here
Remove unwanted smells here