Can a smell be protected by copyright?

Can a smell be copyrighted? The global fragrance market is worth over $10 billion. In France, the fragrance market is by far the biggest single market. The market is highly saturated and competitive, so manufacturers are desperate to protect their perfumes through a legal mechanism. Currently, trade mark law can offer some element of protection which enables customers to identify goods or services coming from a particular source. Therefore, it should be considered if copyright law can extend to smells which are held to be alike, as this would allow protection to not only the brand of the perfume but the actual smell of it as well.

Can a smell be copyrighted?

Kecofa v. Lancôme

The landmark case in relation to the potential copyright of a smell is Lancôme. The case demonstrated the creativity required to create a perfume and provided a justified recognition.

The Court of Appeal held that the defendant had infringed Lancôme’s product as a chemical analysis showed that nearly all the components in Lancôme and the reproduced creation were identical. It was said that the probability of that occurring coincidentally had the equivalent probability of winning the lottery every day for around 100 years. Therefore, the Court of Appeal concluded that the defendant had deliberately and unlawfully infringed Lancôme’s copyright.

However, the Supreme Court must establish that the scientific evidence that was provided is admissible evidence to demonstrate that there is an infringement of smell.

The case was therefore heard in the Dutch Supreme Court as the Dutch Copyright Act does not explicitly exclude smell from the definition of ‘work’. The Supreme Court held that the work was precipitable to humans.  Additionally, the work was held to be of original character and had the personality of the creator.  The Court further stated that it made a difference that the ability to detect and distinguish scents is different for each person as the evidence could be collected through a chemical analysis that was undertaken. 

Even though the Supreme Court acknowledged that some elements of the Dutch Copyright Act could not apply to scents, it should not mean that an author of an original fragrance should not have a claim against a counterfeit.  Therefore, the Supreme Court upheld the decision that was made by the court of Appeal. However, the Dutch Copyright Act is deemed to be more lenient than the CJEU’s approach. Within the Act, there is no exhaustive list of subject matter that can be protected. This opens the scope that anything that is deemed perceptible and original can be protected, which was fulfilled in the case.

Bsiri-Barbir v. Haarmann & Reimer

The case of Lancôme goes against Haarmann which was decided 3 days before Lancôme, in the French courts. In the case, the Court distanced perfumers from artists and found that their creation was not eligible for copyright protection. It was said that perfumes are manufactured through the application of merely technical knowledge and do not constitute the creation of a form of expression which can enjoy copyright protection as a work of the mind. 

Based on the judgment of the Court, it can be inferred that perfume smells do not attract copyright protection because it is simply combining chemicals, which lacks the necessary level of creativity for copyright protection under French law.

From the perspective of perfumers, the decision in Lancôme was welcomed as it allowed perfume scents to be recognised as artistic work, which can be protected by copyright. However, one worrying aspect of the protection of perfumes is that it could lead to undue monopolies in a highly competitive and saturated global market, which will result in a severe barrier to enter the market.

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By Abhiraj Aujla

References for Can A Smell Be Copyrighted

Here are some references for Can A Smell Be Copyrighted, here you can find all references for this article, which are from high authority sites and sources.

• France (Wikipedia.ORG)
• Lancôme (Lancome.CO.UK)
• The Court of Appeal (Wikipedia.ORG)
• Supreme Court (Rechtspraak.NL)
• Dutch Copyright Act (Wikipedia.ORG)

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