discussion was kicked off by Kimiya Shams (pictured), who
has written an op-ed for businessoffashion.com titled "
On Why Fragrances Should Qualify for IP Protection".
Kimiya reviews recent case law, including last
year’s French Supreme Court case
Lancôme v Modefine ruling out copyright
protection; the Dutch case
Lancôme v Kecofa which on the contrary found
there was copyright in perfumes; and the long-running
L’Oréal v Bellure smell-a-like
trade mark case in the UK and CJEU (see picture, below
Kimiya concludes: "Innovation has been the key factor to the
development of the fragrances we see today, but now
it’s at risk of abuse. To deny the sector IP
protection would cause losses, not only for the fragrance
industry, but also for nations who benefit from being at the
forefront of innovation, but cannot compete on cost alone."
Various views have been
expressed on the discussion board. Erica Bristol points out
that scents are registrable as trade marks in the US, While
Kamiya herself notes that proposed changes to EU trade mark law
(the replacement of the "graphical representation" requirement)
could make it easier to protect smells in Europe.
Meanwhile, Robert Welsh argues that "fragrances fall in
between the conventional forms of IP protection". In
particular, he says, "patents would reveal too much" making it
easy to reverse-engineer compositions. In another comment,
Andrew Bridges questions whether additional IP protection is
needed given the success of the industry up until now. This is
a point echoed by Brian Hubbard, who asks: "How is the current
IP situation for fragrance houses any different from that faced
by great chefs for their food?"
It’s an interesting debate, and we would
welcome further contributions. Personally, I think
it’s unlikely that there would be sufficient
demand to create a new IP right for fragrances, let alone one
that could be adopted around the world (what would we call it
anyway? Topography of integrated tinctures?).
That leaves copyright, trade marks and patents. The
copyright objections made by the French courts seem to make
sense (though it has been criticised for adding a new
requirement for protection), and scent trade marks
don’t seem to have appealed to applicants so far
(plus there would be objections based on the potential for
Despite the concerns, therefore, you could argue that
patents are the most appropriate form of protection if there is
genuine innovation in perfumes (or in the way they are
manufactured) – provided of course that the fragrance
meets the usual patentability criteria in the relevant market.
Yes, that only covers you for 20 years but that should be long
enough for many products, and in any case long enough to
provide a return on the investment in research. Patents exist
in principle to promote innovation, and they’re
good enough for many other industries – so why not