lawyers in India

Does perfume smell have its own copyright

Written by: Pooja Vatsh - Student of 2nd yr. LL.B . Bharati Vidyapeeth Pune
Constitutional Lawyers in India
Legal Service
  • Copyright is a form of intellectual property which gives the creator of an original work exclusive rights for a certain time period in relation to that work, including its publication, distribution and adaptation; after which time the work is said to enter the public domain. Copyright applies to any expressible form of an idea or information that is substantive and discrete.

    Definition: Copying is the duplication of information, or an artifact, based only on an instance of that information or artifact, and not using the process that originally generated it. With analog forms of information, copying is only possible to a limited degree of accuracy, which depends on the quality of the equipment used, and, if applicable, the skill of the operator. With digital forms of information, perfect copying is not only possible, but is, almost by definition, the norm.
    Some jurisdictions also recognize "moral rights" of the creator of a work, such as the right to be credited for the work. Copyright laws vest a bundle of rights upon the copyright owners, notably rights too many uses of a protected work, rights to reproduce; distribute; make derivative works, and publicly display or perform the work. But the right is granted for a limited period. The main legislation governing copyright is the Copyright, Designs and Patents Act 1988. Copyright law protects the results and the expressions of creative ability, there are no formalities and the right comes into existence as soon as any tangible evidence of the creative ability appears. Protection can last up to seventy years from the death of the creator.

    The classic copyrights are original literary, dramatic, musical and artistic works. Entrepreneurial copyrights are films, sound recordings, published editions, broadcasts and cablecasts. The WIPO. Standard is the life of the author plus 50 years, in India it is life plus 60 years. Copyright became important only after the invention of the printing press, the Statute of Anne (1710) being the first full-fledged copyright law. The Paris Convention (1883) for the protection of industrial property and the Berne Convention (1886) for the protection of literary and artistic works marked the beginning of the international IPR era.

    First owner and duration of copyright: It is important to establish to what extent, if any ownership rights reside with the author or creator of a work as opposed to an employer. This is governed by s. 11 of the Copyright, Designs and Patents Act 1988 (the '1988 Act'). However, this is usually more complex than as stated in the Act. Subject to the exemptions below copyright in literary, dramatic, musical or artistic work expires seventy years from the year in which the author of the work dies.

    But it has wider expansion when we talk about protection of the thing listed below:

    Computer-generated works

    50 years from the end of the year in which the work was first made.

    Crown copyright

    it talk in the pretext of such things as literary, dramatic, musical or artistic works that lasts for 125 years from the year in which the work was first made. If the work is published commercially within 75 years of its creation then copyright also lasts for 50years from when the work was made.

    Parliamentary copyright and international organizations – these for 50 years from when the work was made.

    Artistic works used in design –this lasts for 25 years from the year in which the articles were first marketed.

    Works of unknown authorship - In certain situations it may not be possible to identify the author of a work. In such situations the 1988 Act provides that protection lasts for 70 years from the date of creation, alternatively if this date is not known then 70 years from the date the work was made available to the public.

    What is a Brand?

    Brands are big business. They can be worth many millions of pounds. The value of the Lancôme perfume brand has been said to be worth 40% of the market capitalization of the Lancôme perfume. It’s not an easy task to define brand but its said brand includes more elements; such as image and reputation; the values that the brand owner tries to inculcate in the buying public. A brand is what customers choose to buy. Many decisions about brands are made by customers emotionally or intuitively rather than rationally. Successful brands create a relationship of trust between the customer and the brand. Important to all this is the overall idea of the "brand image". The brand image can be created in a variety of ways: personal experience; word of mouth; how the brand is presented in stories in the media; packaging; point of sale display; retail staff; and, of course, advertising.

    Referred case
    One of the leading brands in the world of perfume is Lancôme which has underdone certain controversies leading to is smell of this particular brand has a copyright or not?. The matter arose in the case of Kecofa v Lancome where the two companies were in dispute over the smell of a perfume.

    The French cosmetics company, Lancôme, sells an exclusive perfume under the name Trésor (Treasure). Kecofa, a small Dutch firm, sells its Female Treasure perfume at a tenth of the price. Lancôme had previously tried to stop Kecofa by invoking its trademark right to the word Trésor, but failed, because the courts found that consumers were unlikely to confuse the brands. In 2000, Dutch Trademark act was updated; Lancôme tried again, this time also claimed infringement of its copyright in the perfume. The trademark claim failed once more, but – probably to Lancôme's surprise – the copyright claim succeeded and was further sanctioned by the Dutch High Court.

    License to smell:

    The Dutch Copyright Act does not contain an exhaustive list of subject matter that can be protected. Basically, anything can qualify for protection as long as it is traceable and unique. The High Court ruled that the smell of a perfume may fulfill these requirements, even if only perceptible through the nose. Here the Court gave the explanation by distinguishing the scent of a perfume from its the liquid containing it, comparing the latter to the paper of a book, which is not subject matter of copyright, whereas the content of the book is. This distinction implies that a perfume that contains completely different ingredients but smells the same may be infringing, while a perfume with a similar formula but a different scent would not be.

    The fact that smells hardly fit in the copyright system, and that the legislature clearly did not think of odors when it drew up copyright law, was not sufficient for the High Court to refuse to confer protection. The Court simply focused on the open-ended requirements for protection: like any other perceptible expression, if a smell is original it could in principle be copyrightable. The originality requirement means that a perfume that exactly replicates, say, the smell of roses, cannot be protected – just as an accurate 3D scale model of the Matterhorn Mountain would be denied protection. Similarly, a scent that resembles some classic perfume may not fulfill the requirement. But if a perfumer gives his own twist to a smell, it may qualify for protection.

    The Dutch Supreme Court made a brave ruling which insisted that copyright can exists in a smell .It was held that as the Dutch Copyright Act contains a non-exhaustive list of things that can be a work and that subsequently, there was no reason why a smell should not be included. It was stated that in order for a smell to obtain copyright protection it must be visible to humans, with its own and original character. In incidences when a dispute arises over a smell, the infringement must be judged on laboratory tests and panels of people asked to smell it. This could well be a landmark judgment in the field of copyright and could instigate a plethora of copyright infringement claims, especially by large fragrance companies.

    The impact of which is worrying aspect of the protection of perfumes is the risk that it could lead to undue monopolies. Most humans do not have a highly developed sense of smell and can only distinguish a limited palette of scents. Thus, different perfumes may readily be held to be alike, and infringements quickly found. As such, the protection of perfumes could undermine competition to an undesirable extent, allowing only a few perfumes to exist lawfully side-by-side. That said, just as similarity could easily be found between a claimant's and an allegedly infringing smell, so too could similarity between a claimant’s and pre-existing scents.

    All of a sudden, there is a rush to secure a copyright on any distinct smell from our daily lives, and exclusively use it in conjunction with a branded product or a service The smell of armpits, dirty laundry, and soiled diapers are all now highly sought-after scents, as companies, pursuing smelly-branding have all lined up, excited for having exclusive rights to aromas which they can use to bring odors to their lifeless products. some ridiculous attempts were also made, The smell of armpits, dirty laundry, and soiled diapers are all now highly sought-after scents, as companies, pursuing smelly-branding have all lined up, excited for having exclusive rights to aromas which they can use to bring odor to their lifeless products.

    Like peachy-smelly-bras or chocolate-smelly-underpants and so on. There are some not so pungent odors, like apples, bananas and oranges, but all the attempts for exclusive use have failed. The buyer and the purchaser both have been given under the eye of law to follow the policy of caveat emptor that safeguards both the parties to be in loss. The development of your perfume extensively, just in case it happens to smell like a fragrance that is already on the market. The documentation may help prove that the similarity is coincidental. And if you stand on the other side and sue someone else for infringement, it ensures that he has the burden of trying to prove that you copied a pre-existing scent.

    WIPO Magazine by Kamiel Koelman,
    Intellectual Property Rights by Narayna

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