Open Access Research Article
INTELLECTUAL PROTECTION OF FRAGRANCES - WHY ARE FRAGRANCES NOT PROTECTED UNDER IPR.
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Article Details
INTELLECTUAL PROTECTION
OF FRAGRANCES - WHY ARE FRAGRANCES NOT PROTECTED UNDER IPR.
AUTHORED
BY - SAAHEN SHARMA
Introduction—
The
Fragrance industry, an alluring blend of artists and commerce, stands as a
testament to the deeply ingrained human desire for pleasure and personal
expression. This industry thrives on the creation of olfactory masterpieces,
each an exquisite symphony of fragrance notes that play a phenomenal role of
igniting emotions and defining individual identities.[1]
beyond the artistic expression, the industry boasts immense economic
significance on a global making it an intriguing topic for investigation and
research.
The
Fragrance Industry and its Economic Significance—
The
fragrance industry is a multifaceted domain that involves a diverse range of
players, from renowned luxury brands and niche perfume houses that trace their
lineage through centuries of craftsmanship to new and cutting-edge startups
that bring about a new face to the industry. With chemists, perfumers, and
makers of fragrances collaborating to create aromatic compositions that capture
the senses, this sector is fundamentally motivated by a tireless search of
originality.[2]
These artisans encapsulate the essence of an idea and distill in into a a
liquid form that embodies a brand’s identity and vision.
Moreover,
the fragrance industry is not solely an expression of artistic abilities, but
it is equally a formidable economic force. Globally, the industry generates
billions of dollars in revenue annually. Sales of fragrances and perfumes alone
account for a significant share of the worldwide personal care sector,
supporting the employment of many people, including perfumers, chemists,
marketers, and merchants.[3]
In a study titled "The Value of Fragrance," conducted by PwC, a professional services firm, on behalf of The International Fragrance Association (IFRA), it was found that the production of fragrance ingredients alone contributes an extra €7.2 billion to the economy. Additionally, it generates a value-added ranging between €48 and €72 billion for 25 distinct categories of consumer goods. According to the study findings, the fragrance industry generated revenues amounting to €7.3 billion in the year 2017. This significant contribution played a crucial role in facilitating the manufacturing and distribution of consumer products, resulting in a global income of €357 billion.[4] Furthermore, the fragrance industry is inextricably linked to other industries, enhancing the market presence and attractiveness of several items. A great smell may increase the perceived worth of a cosmetic line, infuse domestic items with a feeling of cleanliness and comfort, and offer a layer of refinement to premium companies [5]. In essence, the fragrance sector serves as a forerunner as well as an important contributor to the greater consumer products market.
In a study titled "The Value of Fragrance," conducted by PwC, a professional services firm, on behalf of The International Fragrance Association (IFRA), it was found that the production of fragrance ingredients alone contributes an extra €7.2 billion to the economy. Additionally, it generates a value-added ranging between €48 and €72 billion for 25 distinct categories of consumer goods. According to the study findings, the fragrance industry generated revenues amounting to €7.3 billion in the year 2017. This significant contribution played a crucial role in facilitating the manufacturing and distribution of consumer products, resulting in a global income of €357 billion.[4] Furthermore, the fragrance industry is inextricably linked to other industries, enhancing the market presence and attractiveness of several items. A great smell may increase the perceived worth of a cosmetic line, infuse domestic items with a feeling of cleanliness and comfort, and offer a layer of refinement to premium companies [5]. In essence, the fragrance sector serves as a forerunner as well as an important contributor to the greater consumer products market.
Research
Objectives
In
the critical analysis of Intellectual Property Rights protection in the
fragrance industry, this research is guided by a bunch of clear research
objectives and critical questions. These objectives will serve as the
foundation for our research and will present a thorough examination of the
relationship between IPR and fragrances.
This
research paper argues that there has been a notable decline in the
effectiveness of trade secrets within the field of perfume production.
Nevertheless, it might be argued that trademark and unfair competition law
provide significant, if not fully exploited, legal protections for scents in
the context of trade dress. In addition, this study examines the potential of
protecting perfumes under intellectual property laws by means of digitizing
smell technologies.
The
following paper discusses—
I.
Trade Secret in the fragrance industry.
II.
How reverse engineering and scent
profiling undermines the fragrance industry’s attempt to safeguard its secrets.
III.
The use and impact of technologies like
Gas-Chromatography.
IV.
Patent protection that exists for
fragrances.
V.
The limited protection copyright offers
for the Fragrance Industry with a dive into the copyright law in different
jurisdictions.
VI.
The problems with Trademark protection for
fragrances
VII.
The Potential legal remedy offered by
Trade Dressing
I. TRADE SECRETS IN THE FRAGRANCE INDUSTRY
The
contemporary fragrance business has a long history of being very secretive.
This characteristic may be attributed to the fact that this sector sprang from
early French medical and pharmaceutical projects where the formulators of
curative potions and elixirs were extremely protective of their inventions.[6]
By the eighteenth century, the creation of fragrances had largely separated
itself from the pharmaceutical industry, and several businesses had been
founded in the Grasse region solely for the purpose of producing scents,
notably body perfumes.[7]
These
products were made in tiny numbers by family-run businesses and were regarded
as luxury items that only a select group of wealthy customers could afford. It
was quite simple for the tiny staffs of these businesses to maintain the
confidentiality of production techniques and formulae. Additionally, these
teams were often made up of coworkers, the majority of whom would work for the
corporation for their whole careers[8].
While
the business continues to manufacture high-end items like fine scents, nowadays
a large portion of the goods made by the main fragrance companies are used to
smell a variety of everyday items like air fresheners and toiletries.[9]
These fragrance producers employ thousands of people, many of whom switch jobs
often during the course of their careers[10].
Contemporary
scent makers face a more formidable obstacle in safeguarding trade secrets as
compared to their counterparts in the eighteenth and nineteenth centuries,
particularly those operating inside smaller fragrance houses and perfumeries.
The primary factor contributing to this phenomenon may be traced to the
substantial expansion of the mobile fragrance industry's workforce and the wide
array of consumer items it now comprises.[11]
The issue at hand is highlighted by an increase in claims of trade secret theft
filed by previous employers against perfumers and flavorists who have
subsequently joined rival businesses.[12]
One
of the most contentious cases is to the ongoing legal proceedings started by
Givaudan, a prominent fragrance producer based in Switzerland, against its
former perfumer James Krivda. Based on this particular viewpoint, the voluntary
disclosure of a trade secret might potentially result in the loss of its
qualification for legal protection as a trade secret. This phenomenon occurs
due to the dissemination of information to other parties, including the
defendant who is often presumed to be a rival in the given context.[13]
II. TRADE SECRET AND REVERSE ENGINEERING LAWS IN THE
UNITED STATES AND THE EU
Trade
secrets are valuable forms of intellectual property that provides businesses
with competitive advantage by protecting valuable information, processes,
formulas, and other proprietary knowledge. In order to get legal protection as
a trade secret, several criteria must be met. Firstly, the knowledge in
question must possess economic value. Secondly, it should not be extensively disseminated
or commonly known. Lastly, reasonable efforts must be made to maintain its
confidentiality.[14]
Comprehensive protection under federal law is not provided to trade secrets in
the United States.[15]
In
addition, these entities are classified as a sort of intellectual property,
alongside other types of information that are safeguarded by patents,
copyrights, and trademarks. Contrarily, the European Union Trade Secrets
Directive asserts that trade secrets should not be regarded in the same manner
as conventional types of intellectual property rights, such as patents.
Instead, they should serve as a supplementary or alternative method of
protecting intellectual property.[16]
The
proprietors of patents, copyrights, and trademarks possess extensive authority
to prohibit the majority of illicit utilizations of their safeguarded
intellectual property. In contrast, those that possess trade secrets possess a
much less definitive benefit.[17]
Although trade secrets have the potential for perpetual protection, it is
legally permissible for a subsequent entity to independently generate and use
information that has previously been discovered by the original entity.[18]
Furthermore, it is worth noting that an individual who arrives later may
legitimately get confidential company information by examining the structure of
a lawfully developed and obtained product that incorporates a trade secret.
The
susceptibility of a trade secret to reverse engineering is contingent upon both
its complexity and the specific product it is used in. In cases when the
product is intangible, such as the selling of stocks or the improvement of
manufacturing processes, the confidential knowledge required to accomplish
these goals may pose more challenges in terms of deciphering compared to the
knowledge used to create tangible goods.[19]
Trade secrets that derive their value from the manufacturing of tangible goods,
such as scents and engines, may exhibit a higher susceptibility to reverse
engineering. The rationale behind this is that physical entities provide
concrete, observable, and diverse forms of data pertaining to the achievement
of the ultimate objective of the confidential information, such as an appealing
fragrance or enhanced operational efficacy.[20]
In
the United States, discovering trade secrets by dismantling and rebuilding is
legally acceptable.[21]
The desirability of this freedom lies in its ability to prevent the potential
monopolistic protection of inventions via the legal safeguarding of trade
secrets, a privilege that is solely governed by U.S. patent law.[22]
In the United States, the act of reverse engineering for the purpose of
acquiring knowledge about industrial secrets is often considered lawful.
However, certain legislative measures have been implemented to curtail the
unlawful use of information obtained via reverse engineering of some goods.[23]
The
primary objective of the United States' decision to permit the practice of
reverse engineering and use of the acquired knowledge is to mitigate
significant inequities that might potentially result in market failures. This
is achieved by discouraging the easy duplication of technological advancements,
which may have required substantial investments of time, effort, and financial
resources by other entities engaged in research and development.
Similar
to the US, the EU’s proposed law on concept of trade secrets brings about a
liberal framework with respect to acquiring trade secrets via reverse
engineering.The primary aim of this regulation is to enhance the legal
safeguarding of trade secrets. However, this stance by the EU on reverse engineering is
anticipated to potentially diminish the level of trade secret protection for
certain fragrance hubs, such as Italy. [24]
As critiqued by the Max Planck Institute, Industries that rely on the creation of novel goods that include intellectual capital not protected as intellectual property find the Directive's open approach to reverse engineering especially troubling.[25] The Comments provided by the Institute highlight the fragrance manufacturing business as a prime example and contend that the Directive's liberal stance on uncovering fragrance secrets using reverse engineering might potentially impede innovation within this sector and lead to market failure.[26]
As critiqued by the Max Planck Institute, Industries that rely on the creation of novel goods that include intellectual capital not protected as intellectual property find the Directive's open approach to reverse engineering especially troubling.[25] The Comments provided by the Institute highlight the fragrance manufacturing business as a prime example and contend that the Directive's liberal stance on uncovering fragrance secrets using reverse engineering might potentially impede innovation within this sector and lead to market failure.[26]
III.
THE TECHNOLOGY OF GAS CHROMATOGRAPHY AND ITS IMPACT ON THE FRAGRANCE INDUSTRY
Modern scents for perfumes are blends of
synthetic and natural essential oils, aroma compounds, and an appropriate
solvent vehicle, such as forms of alcohol, mixed with water. Eau de Toilette
and Eau de Cologne are diluted varieties. The effectiveness of these organic
aromatic compounds requires that they be volatile at body temperatures. The
best method for separating, identifying, and quantifying the ingredients in
most perfume aromas is gas chromatography (GC) analysis.[27]
Mass spectrometry (MS) is an additional tool that aids in the identification of
the constituents present in a gas chromatogram.[28]
GC/MS allows perfume makers to separate,
identify and quantify the aromatic compounds within a sample.[29]
Therefore, this kind of analytical testing may assist perfume manufacturers to
understand the raw materials, ingredients, and create a very similar smelling
finished product, as well as fixing scents that are emitting strange or
unexpected odors, reverse engineering the scent to understand the exact makeup
of the scent and understanding the impact of storage circumstances on the scent
such exposure to heat, cold, light, or darkness, or packaging kinds. [30]
Fragrance houses are concerned about GC-MS
technology because it makes it possible for almost anyone to obtain the most
expensive component of a fragrance—the formula, which is typically developed
after months or even years of expensive research—increasingly quickly and
inexpensively[31].
Consequently, an underground market has arisen to manufacture and distribute
imitation fragrances that closely resemble popular aromas, at much reduced
prices compared to authentic ones, due to the increased accessibility and
efficiency of gas chromatography-mass spectrometry (GC-MS) technology.[32]
An informal agreement exists among
five of the most prominent fragrance makers on a global scale. The purpose
of this agreement is to prevent the production of rival goods that may
potentially undermine each other's market share. This is achieved by refraining
from developing items that rely on reverse engineering the smell formulations
of their competitors.[33]
However with improvements in technology that increase the accessibility and
accuracy of methods like GC-MS has played a big role in testing the strength of
this agreement amongst fragrance manufactures.
The use of GC-MS technology has provided fragrance manufacturers with a strategic advantage in negotiating more favorable pricing arrangements for the creation of novel scents, as well as for the continued provision of previously contracted items.[34] In the event that a fragrance company demonstrates reluctance in accepting the previously established price agreed upon by a client for the continuous provision of a product that was specifically tailored for said client, the customer may choose to reverse engineer the fragrance and subsequently obtain it at a reduced expense from a competitor of the initial supplier.[35] The rival entity would be able to acquire the formula legally, easily avoiding the expenses of creating the formula.
The use of GC-MS technology has enhanced the feasibility for consumers to independently generate continuous quantities of fragrances that were specifically formulated by fragrance houses in response to their requests. The efficacy of these approaches was recognized when LVMH, the conglomerate specializing in luxury goods, established a fragrance compounding facility to manufacture concentrated supplies for their brands such as Dior and Kenzo. Previously, these formulas had to be sourced from Givaudan and IFF, as these companies were responsible for their development.[36] LVMH was able to create their concentrate that uncanny to the previously procured concentrates. According to their assertion, the mixes they manufactured exhibited nuanced alterations and distinctions in comparison to those made by Givaudan.[37] The use of these strategies to evade legal responsibility for violating agreements to get concentrates from the firms who created the initial formulations was very concerning for the fragrance industry as a whole. By introducing proprietary mixes, they effectively bypassed the manufacturers.[38]
The use of GC-MS technology has provided fragrance manufacturers with a strategic advantage in negotiating more favorable pricing arrangements for the creation of novel scents, as well as for the continued provision of previously contracted items.[34] In the event that a fragrance company demonstrates reluctance in accepting the previously established price agreed upon by a client for the continuous provision of a product that was specifically tailored for said client, the customer may choose to reverse engineer the fragrance and subsequently obtain it at a reduced expense from a competitor of the initial supplier.[35] The rival entity would be able to acquire the formula legally, easily avoiding the expenses of creating the formula.
The use of GC-MS technology has enhanced the feasibility for consumers to independently generate continuous quantities of fragrances that were specifically formulated by fragrance houses in response to their requests. The efficacy of these approaches was recognized when LVMH, the conglomerate specializing in luxury goods, established a fragrance compounding facility to manufacture concentrated supplies for their brands such as Dior and Kenzo. Previously, these formulas had to be sourced from Givaudan and IFF, as these companies were responsible for their development.[36] LVMH was able to create their concentrate that uncanny to the previously procured concentrates. According to their assertion, the mixes they manufactured exhibited nuanced alterations and distinctions in comparison to those made by Givaudan.[37] The use of these strategies to evade legal responsibility for violating agreements to get concentrates from the firms who created the initial formulations was very concerning for the fragrance industry as a whole. By introducing proprietary mixes, they effectively bypassed the manufacturers.[38]
Fragrance houses are unwilling to loose
powerful clients like LVMH, which aims to continue commissioning new
products that use its R&D expertise. Scent businesses might contractually
exclude consumers from using newly created formulae or getting scent
ingredients from other sources. Analytic tools provide fragrance business
customers a negotiating edge, making such conditions tough to negotiate.[39]
In light of the potential for lawful reverse engineering and autonomous
production of fragrances, it is unlikely that customers would engage in such
practices in return for price discounts or assurances pertaining to product
manufacturing and quality, including ingredient sourcing.[40]
In summary, throughout the last several
decades, the fragrance business has seen significant changes in its economic
paradigm due to the increased availability and improved capabilities of GC-MS
technology. The formulations, which have been safeguarded as trade secrets, may
now be lawfully obtained by those who possess the necessary resources to access
a well-equipped laboratory[41].
The compounded consequences of this diminished safeguard have been further
exacerbated by unparalleled demands for enhanced governmental oversight
pertaining to the industry's merchandise, which may necessitate the public
revelation of component lists, or maybe even secret scent compound
formulations.
IV. PATENT PROTECTION OF FRAGRANCES
A
patent confers upon its holder the exclusive authority to prohibit other
parties from engaging in the acts of manufacturing, using, or vending the
patented invention without obtaining prior consent. Patents serve as a catalyst
for firms to allocate the required expenditure towards innovation, while also
offering individuals and organizations the motivation to allocate resources
towards research and development endeavors. According to the legal frameworks
of the United States and the EU, individuals or entities that hold patents are
granted an exclusive period of twenty years during which they have exclusive
rights to produce, use, and distribute their ideas.[42]
Individuals who engage in the independent development or reverse engineering of
a patented invention are legally banned from engaging in illicit activities
such as producing, using, importing, and selling items or services that include
such innovation. The comprehensive ban mentioned above is mitigated by the need
for patent holders to reveal the composition and operation of their invention
during the patent registration process.[43]
This disclosure results in the information entering the public domain after the
patent period concludes. Furthermore, the protection offered by patents
encompasses any items that have been created via the process of reverse
engineering, including their sale, production, and any other methods of
distribution.
Despite
the robustness of patent protection, the fragrance business does not largely
depend on this specific kind of intellectual property for safeguarding scent
compositions, especially those associated with premium perfumes. Patents
require certain criteria to meet before it can be protected. In order to meet
the criteria for patentability, an invention must possess the attribute of
being capable of "industrial application”.
According to Article 52(1) of the European Patent Convention (EPC) of
2000, 'European patents may be awarded for discoveries in any technological
sector, as long as they meet the criteria of novelty, innovative step, and
industrial applicability'.[44]
An innovation is said to possess industrial applicability when it may be used
or manufactured throughout a broad range of industries, where industry has
the broadest interpretation, not run only by profits.[45] In
addition to its use or production within various industries, an innovation must
demonstrate practical utility and should be widely 'useful' in order
to be deemed industrially relevant[46].
A patent is considered to meet the requirement of practical application or
actual benefit when it reveals such attributes.
Thus,
in order for an innovation to be eligible for patent protection, it is
essential that it be useful. Comparable to the jewelry industry, the fragrance
sector strategically markets high-end scents as exclusive symbols of
grandeur. The attribution of usefulness
to these items diminishes their aura of uniqueness, thereby affecting the
economic value linked to completely discretionary purchases.[47]
Furthermore,
patents provide a twenty-year timeframe during which exclusive ownership and
comprehensive disclosure of an invention are granted, a feature that does not
apply to the fragrance industry. The market for certain luxury goods has a
lifespan that beyond twenty years, hence augmenting their long-term worth.[48]
The
fragrance business exhibits limited dependence on patents as a means of
safeguarding the formulae used in the production of its final goods. The
applications pertaining to perfume compositions mostly focus on novel methods for
extracting, producing, or conveying scents[49].
The limited number of patents that exist to safeguard the formulae of aromatic
compounds are mostly based on assertions of the product's practical ability to
replace unpleasant scents or, to a lesser extent, to enhance both physical and
mental well-being.[50]
Yet
fragrance companies utilize patents to protect some of their valuable secrets;
like new fragrance molecules that they have developed. These are referred as
captives.[51]
The value of these patented compounds mostly lies in their ability to
facilitate the development of novel, safer, or more cost-effective perfumes,
rather than only relying on their aesthetic appeal.[52]
The companies use these molecules to develop new fragrances but much of their
profit comes from the subsequent sales or the licenses that other fragrance
manufactures obtain from them to use them during patent protection; along with
the royalties that manufactures pay to these companies when they capitalize on
these new molecules[53].
V.
COPYRIGHT PROTECTION OF FRAGRANCES
The word 'copyright' refers to the domain
of IPR that regulates the production and use of culturally significant
commodities, including books, music, and films. Copyright law provides
automatic protection for intangible property, often benefiting the author.[54]
The copyright owner is granted a range of rights, with the ability to reproduce
the work.
While acquiring a patent may be a
challenging and expensive endeavor due to the need for the claimant to
demonstrate that their invention incorporates novel knowledge with practical
use, whereas the process of a copyright registration can be fairly very
straightforward. In copyrights the author seeking registration is only
required to assert that their work constitutes a significant amount of creative
expression.[55]
In essence, an author has the capacity to assert authorship over a creative
work that is already subject to copyright protection or falls into the public
domain, provided that their work was generated autonomously from the existing
composition.[56]
Copyrighting enables owners to enjoy more
rights including reproduction and performance rights along with the fact that
the term of copyrighting is several times that of a patent. The extent of
copyrightable expression has seen significant expansion since the
implementation of the Statute of Anne in 1710, which granted writers the rights
to their literary works.[57]
The adaptability of the boundaries of protection has been addressed by the
development of copyright laws that provide representative, although not
comprehensive, instances of works eligible for copyright.[58]
The British Law-
The British Statute, for instance, the Copyright, Designs and Patents Act, 1988 (hereinafter "CDPA, 1988”) provides a comprehensive and thorough compilation of the many categories of creative works that are protected by copyright legislation. In order for a creation to be eligible for copyright protection, it is mandated by the legislation that it must fit under one of the eight specified categories of work. The categories of creative works included under the scope of intellectual property law include: (i) works of literature; (ii) works of theater; (iii) works of music; (iv) works of art; (v) films; (vi) sound recordings; (vii) broadcasts; and (viii) published editions (or works of typography). According to Section 4(1) of the Copyright, Designs and Patents Act (CDPA) of 1988, a work of artistic workmanship is defined as being within the scope of protectable subject matter categorized as 'artistic works'.[59] The limited breadth of the closed list system in the United Kingdom, in contrast to the larger protection afforded in the United States, France, and Germany, contributes to the challenges faced in the protection of fashion in the UK.[60]
The British Statute, for instance, the Copyright, Designs and Patents Act, 1988 (hereinafter "CDPA, 1988”) provides a comprehensive and thorough compilation of the many categories of creative works that are protected by copyright legislation. In order for a creation to be eligible for copyright protection, it is mandated by the legislation that it must fit under one of the eight specified categories of work. The categories of creative works included under the scope of intellectual property law include: (i) works of literature; (ii) works of theater; (iii) works of music; (iv) works of art; (v) films; (vi) sound recordings; (vii) broadcasts; and (viii) published editions (or works of typography). According to Section 4(1) of the Copyright, Designs and Patents Act (CDPA) of 1988, a work of artistic workmanship is defined as being within the scope of protectable subject matter categorized as 'artistic works'.[59] The limited breadth of the closed list system in the United Kingdom, in contrast to the larger protection afforded in the United States, France, and Germany, contributes to the challenges faced in the protection of fashion in the UK.[60]
One of the landmark cases of British
judicial system, Hensher v Restawl, lays down a
very varied interpretation of artistic expression[61].
The Lords provided many justifications for the chair's non-artistic nature.
Lord Reid said that whether an item is artistic depends on whether a large
portion of the public likes its look; Lord Morris believed specialists'
opinions were significant; and Lord Dilhome thought it was an instinctive
matter.[62] Lord Kilbrandon asked: did the artisan want
to create art? Lord Simon believed that the creator's goal was vital but also
considered the work's effect and the craftsman's peers[63].
Some considered artistic work to be handicraft whereas others felt it to be
machine engineered. Thus, the Lords' unhelpful disparity shows that determining
whether a work is artistic is difficult.
The French Law-
Furthermore, according to Article L.112-2
of the French Intellectual Property Code (referred to as "IPC"
below), there exists a non-comprehensive enumeration of the many works that are
eligible for copyright protection.[64]
According to French legislation, perfumes and scents are not included within
the scope of this list. However, it is important to note that under French
copyright law, all unique compositions are granted protection, irrespective of
the author's merit, the work's aim, the kind of work, or the medium of
expression.[65]
The provision outlined in Article L.112-1 of the Intellectual Property Code
(IPC) safeguards the rights of authors in various intellectual works,
regardless of their nature, mode of expression, value, or objective.[66]
However, it does not explicitly define the concept of originality. In this
particular context, the term "creation" necessitates the work to
possess an element of novelty, indicating that it should have distinct
characteristics that reflect the author's individuality. This non-comprehensive
compilation of works may potentially give rise to difficulties.[67]
The Court's opinion in the notable case of
Bsiri-Barbir vs. Haarmann & Reimer
established an important precedent by determining that perfumes do not qualify
for copyright protection. This decision was based on the restrictions outlined
in Article L.112-1 and Article L.112-2 of the French copyright Act of 1994.[68]
The individual filing the petition in this particular legal matter had created
specific fragrances for the defendants and sought copyright protection for such
fragrances. The Supreme Court has saw that the production of a scent does not
qualify as the generation of an expressive form that is eligible for copyright
protection under the category of "work of a mind".[69]
Based on the decision rendered by the Court, scents are considered unsuitable
for copyright protection under French law. This determination is based on the
fact that fragrances are believed to be the consequence of purely technical
knowledge, and so lack a discernible relationship to the unique personalities
of their creators.[70]
This stance that fragrances cannot be
granted copyright protection was upheld in Beaute Prestige
Int’l v Senteur Mazal wherein
it upheld the law that perfumes cannot be granted copyright protection in
France and focused on the question of whether the
fragrance of a perfume constitues “a form of expression that benefits from the copyright protection
intended for works of the mind”.[71]
The defendant's argument that variations in human olfactory perception make it
impossible to determine whether a particular fragrance meets the necessary
criteria for copyright protection was rejected by the court.[72]
In light of the above reasoning, the court agreed that literary, visual, and
musical works are susceptible to many interpretations.[73]
However, the court emphasized that such
differences in perception do not diminish the inherent uniqueness of these
works.
The Dutch Law-
On the other hand, it is important to
acknowledge that the Dutch Copyright Act does not provide an exhaustive list of
the many subject matters that qualify for copyright protection. In its
fundamental nature, each entity has the potential to qualify for legal
safeguarding, contingent upon its possession of the attributes of
perceptibility and originality.[74] Article 1 of the Dutch Copyright Law (also
‘DCL’), known as Auteurswet, grants the author of its literary, or
artistic works, the exclusive privilege to publish and reproduce such work.[75] Within the framework of the Digital Copyright
Law (DCL), Article 10 presents an inclusive compilation of resources that are
within the scope of the word "work". According to the recent ruling
by the Dutch Supreme Court, in order for an invention to be recognized as a
work, it must possess distinct originality and bear the unique mark of its
creator.[76]
Lancome vs Kecofa stands
as landmark case in Dutch jurisprudence regarding copyright of fragrances. Lancôme
commenced legal proceedings in the Netherlands, alleging copyright infringement
against Kecofa, a Dutch retailer of perfumes.[77] Lancôme
made the assertion that Kecofa's Female Treasure not
only constituted a replica of Trésor,
but also violated its copyright. The case was escalated to the Netherlands
Supreme Court, which finally upheld the rulings of the lower courts, affirming
that scents are eligible for copyright protection.[78]
The Supreme Court observed that the Dutch copyright law is comprehensive in its
extent of protection and should not be interpreted as excluding perfumes that
include perceptibility, originality, and are not solely utilitarian in nature.[79] The
court further held that in order for the subject matter to be
considered unique, a scent does not necessarily have to be fresh in an
objective sense, but rather it must possess a subjective novelty as seen by its
creator.[80]
The viewpoints expressed
in both Dutch and French instances, which highlight the significance of the
perfume maker, fail to adequately consider the role of the user in evaluating
the copyrightability of fragrances.[81]
The insufficiency of
these judgments, which include the expansion of copyright protection to scents,
is not due to their acknowledgment that the practice of perfumers may be a
multidimensional intellectual and aesthetic endeavor like to writing and
painting.[82] The said
judgments fall inadequate since they fail to take
into account the limitations of human olfactory perception in comprehending the
intricacy of the creative output produced via this application of intellect and
imagination. These cases do not provide an adequate explanation on the
level of perceptibility required for a phrase to be eligible for copyright
protection.[83]
In spite of the favorable
results seen in the judicial systems of France and the Netherlands, the Cour de
cassation has once again dealt a setback to proponents of copyright protection
in the case of Lancome
vs Farque.[84]
This legal dispute arose when Farque faced prosecution for engaging in the sale
of counterfeit scents at a flea market.[85]
Upon reaching the Cour of Cassation, the court definitively ruled that scents
do not qualify as copyrightable forms of expression. The court distinguished
between the process of scent creation and the act of perceiving it, holding
that the original smell cannot be effectively disseminated on a wide scale due
to its limited perceptibility.[86]
The issue of whether
scents may be eligible for copyright protection has not yet been addressed by
other courts like the United States or India. With the exception
of the Netherlands, copyrights, similar to patents, provide little comfort to a
business that is concerned about the susceptibility of its most precious
intellectual assets.[87]
Trademark
and the Potential Remedy offered by Trade Dress—
The scope of
copyrightable expression in the United States, referring to the various forms
of creative works that are eligible for legal protection, has seen a
significant expansion throughout the later part of the twentieth century. This
expansion also includes the broadened range of distinctive signs indicating
commercial origin, often known as trademarks, which are now eligible for
indefinite protection. Towards the conclusion of the century, trademarks
pertaining to odors, sounds, and even individual colors were deemed eligible
for protection.[88] The scope of
legally protectable visual trademarks has expanded beyond those consisting only
of words and/or drawings, now including the "trade dress" of goods
and services as well.[89]
The protection of colors,
scents, and sounds as trademarks as under US law, may not be found under
international conventions and other national trademark regimes, and they tend
to be less accommodating that the US towards these nontraditional marks.[90] There exists
a notable lack of uniformity across the trademark regimes of different nations.
Countries like Mexico and Brazil, for example, will
only register signs that can be seen by the naked eye, whereas Germany will
safeguard single-color insignia that have acquired secondary importance. [91]
VI.
THE PROBLEM OF PROTECTION OF FRAGRANCES THROUGH TRADEMARK
The judiciary has exercised care in
recognizing colors, odors, and tastes as trademarks since there are worries
over the potential for granting an unwarranted monopoly to early adopters. This
might potentially lead to the monopolization of a limited set of recognized
trademarks within certain product and service categories.[92]
The motive for trademark protection is to safeguard customers from
misrepresentation of products. However, it is important to ensure that this
objective does not impede competition within a market by granting early
entrants the possibility of indefinitely monopolizing a restricted number of
trademarks.[93]
The depletion of scent, taste, and
single-color markings occurs more quickly compared to design and word marks.
This exists not because of a lower number of viable marks in the products, but
rather due to consumers have a limited ability to differentiate among them,
unlike their capability to discern design, word, and sound marks.[94]
The use of smells as trademarks presents
challenges due to the difficulty for the average customer to discern
differences in odors and tastes applied to goods or services, in contrast to
their ability to recognize changes in designs and language.[95]
In the realm of fragrances and tastes, despite their vast diversity, we often
use a restricted vocabulary to categorize them. For instance, we employ the
phrase "floral" to encapsulate the olfactory characteristics of
several distinct flowers, and the term "spicy" to include the
gustatory qualities of a multitude of piquant flavors.[96]
The combination of various fragrances and
tastes has the potential to generate intricate chemical compounds. However, our
perception of these combinations is often characterized by a lack of
distinctiveness, as they tend to manifest as indistinct amalgamations of a
limited number of general scent and flavor categories that we use to analyze
and articulate them. This particular wine has a pronounced citrus taste
profile, while the moisturizer possesses a distinct vegetal aroma.[97]
There exists a vast array of vegetal odors
and lemony aromas, however, it is difficult to discern and classify them
accurately due to the absence of a universally accepted nomenclature. Due to the possibility of trademark dilution
resulting from this lack of subjective adequacy, the majority of national
trademark administrations do not include protections for fragrance marks.[98]
Therefore, nations such as Brazil, Japan,
China, and Taiwan do not acknowledge the legal validity of smell markings. In
these jurisdictions, scent marks are not eligible for registration, and the
courts do not see it essential to provide protection for unregistered scent
marks.[99]
Trademark protection for smell markings is
neither explicitly permitted nor prohibited under international conventions
such as TRIPS and EUTD. However, the registration process for scent marks is
challenging due to the complexities arising from international courts and
national legislation.[100]
The landmark case of Ralf Siekmann vs German Pat brings
clarity on the subject. Ralf Sieckmann, the individual in question, had
formally presented a scent with the intention of using it as a distinctive
symbol representing a variety of professional services.[101]
As part of his application, Mark Sieckmann included many visual depictions of
the mark, including a liquid sample of the scent, the chemical formula of the
fragrance (C6H5-CH = CHCOOCH3), and a descriptive statement characterizing it
as "balsamically fruity with a tiny touch of cinnamon.”[102]
The court stated that the graphical
representations provided can be considered ineffective due to their inability
to accurately convey information. [103]The
visual depiction of an amber liquid, accompanied by the phrase
"balsamically fruity" lacks specificity and may elicit a wide range
of interpretations in the minds of most consumers. Only chemists with
specialized training would likely be able to identify the chemical shorthand
presented as Methyl Cinnamate.[104]
The poor perceptual ability of consumers
to discern Siechmann's marks results in an obscured understanding of the extent
of protection afforded, perhaps leading to an excessively wide scope of
protection. This might have negative implications for both customers and rivals
of the trademark.
Nevertheless, the perspective that flavors
and smells pose challenges as trademarks only due to the potential difficulty
for an average consumer to differentiate between many flavors and fragrances is
inconsistent and incorrect.[105]
Considering the existence of recognized procedures, sometimes referred to as
"sensorial analysis," for the purpose of characterizing odors, and acknowledging
that each fragrance have a unique chemical composition, it is appropriate to
argue that fragrance compositions that can be visually depicted ought to be
eligible for trademark protection.[106]
The necessity of trademark protection in
the context of fragrances arises from the fact that marketers and traders
utilize fragrances not solely to represent a specific product or service, but
also to establish a distinctive atmosphere in which retail customers engage in
transactions with a specific seller.[107] This
practice is observed in various settings, including luxury car showrooms,
stadiums, auditoriums, luxury retail stores, airports, and apartment buildings,
to bring about the desired feelings of sophistication or energy.[108]
This phenomenon is also referred to as Trade Dress.
VII. TRADE DRESS AS THE POTENTIAL REMEDY
Trade
dress has the potential to serve as a viable solution for the makers of
perfumes who need intellectual property protection.[109]
The preceding discourse on patents and copyrights reached the consensus that
both legal mechanisms provide little efficacy in protecting the intellectual
property of the fragrance business.[110]
As previously mentioned, patents are often issued for a duration of twenty
years. Additionally, according to the French courts, copyright is deemed
inadequate for safeguarding perfumes owing to issues pertaining to
communication and perception.[111] Considering the aforementioned constraints,
it might be argued that trade dress represents the most feasible avenue for
safeguarding intellectual property in the context of perfumes. Due to its
limited duration of perceptibility, the utilization of scent in conjunction
with a multisensory amalgamation of diverse stimuli such as colors, pictures,
and sounds enhances the likelihood of trade dress protection.[112]
The
term "trade dress" pertains to the holistic visual manifestation and
overall exhibition of a product. The concept incorporates a variety of
elements, such as proportions, configuration, color or color combinations,
texture, and graphics, among others.[113] Hence, trade dress may consist of a
combination of components that may not individually qualify for trademark
protection. The protectability of the amalgamation of these characteristics
stems from its inherent ability to serve as an identifier of the origin of a
particular goods. In this context, the comprehensive composition of a trade
dress has a greater magnitude in comparison to the collective worth of its
individual constituents.[114]
The combination of unique visual elements may also serve as the trade dress for
a product or service.
In
the given scenario, if a hotel were to introduce Chanel No. 5 fragrance across
all its establishments instead of its own exclusive lemongrass scent, Chanel,
the brand owner, would likely assert a legal claim.[115]
In the absence of visual substantiation, Chanel would argue that the hotel's
dissemination of the prestigious No. 5 fragrance is aimed at cultivating a
notion among clients that its establishments have an official association with
this recognized purveyor of opulent luxury merchandise. The possible impact of
this linkage on Chanel's brand image might be negative. Nonetheless, Chanel has
the capacity to prohibit such use provided it can substantiate that the
consistent dissemination of scent inside a professional setting has the
potential to generate confusion about the source, endorsement, or association
with items or services.[116]
The
olfactory perception of a certain location often serves as the first
confirmation of one's presence in a given setting, such as a residence, lodging
establishment, commercial establishment, or wellness facility. The auditory and
visual inputs, in this context, assume a subordinate position in relation to
the state of consciousness.[117]
The
concept that a specific aroma or scent can be legally registered and
safeguarded as a trademark or trade dress enhances the economic and financial
worth of each innovation, as it enables producers to direct their inventions
and collect fees for the utilization of their creations by prominent
manufacturing and distribution entities.[118]
However
even trade dressing is not a fool proof method of protecting fragrances. The
potential of fragrance trade dress to get equivalent protection as conventional
word and design trademarks may have a positive impact on merchants and
fragrance brands, but not necessarily benefiting industrial makers of scent
mixes.[119]
The trade dress protection for scents produced by a fragrance producer is not
feasible, since fragrances themselves constitute the core goods and services
offered by the firm.[120]
Hence, fragrances lack intrinsic distinctiveness and the ability to develop
secondary meaning, which would enable customers to differentiate between
various scent brands.
While
merchants and service providers like hotels may benefit most from scent trade
dress protection, fragrance makers may indirectly benefit from trademark law's
expanding tolerance for non-traditional trade dress.
The
use and safeguarding of a commissioned fragrance as trade dress has bestowed
onto it economic value that is not readily attainable by commercially available
fragrances. Fragrance designers should consider this into their costs for
creating and producing new items as perfumes are becoming important and legally
protectable branding agents.[121]
Conclusion—
Intellectual
property refers to the manifestation of human mind in the form of a creative
work. The absence of protection for intellectual property may impede technical
progress of a country. Hence, the role of intellectual property is vital for
the advancement of a nation's industrial and economic growth. The perfume
industry is one such sector that needs protection due to its
ever-increasing growth and contribution to the economy. Currently,
the global perfume industry generates roughly $50 billion in yearly
revenue.[122]
The fragrance business is well recognized for its manufacturing of high-priced
fragrances, although its most valuable resources lie in the intangible
intellectual rights that underpin these physical products.[123]
Over
the last three decades, breakthroughs in screening technology and stricter
government disclosure rules have undermined fragrance firms' attempts to
safeguard their valuable scent formulation and manufacturing secrets.
As discussed, copyright and trade secret
legislation cannot stop the dissemination or execution of this knowledge. In
addition, scent makers may only protect freshly discovered fragrance compounds
with patents.
Large
fragrance corporations have created and marketed items for couture houses,
merchants, consumer products companies, etc. These perfumes are sold by
merchants as consumer items and employed, like broadcast recordings of musical
compositions, as part of a bigger trade dress that identifies a retailer or
service provider.[124]
Similar
to how copyright owners of musical works are unable to exercise control or get
financial gain from private performances of their songs, scent makers and
sellers are also unable to exercise control or obtain financial gain from
private usage of their legally obtained items.[125]
When these things are used in public and business environments, they gain value
that extends beyond their pleasurable qualities, as they contribute to the
establishment of a brand identity for a commercial product or service. Similar
to how a copyrighted music may generate more economic worth via public
performances, a scent can attain higher economic value by being included into a
legally safeguarded trade dress through its use in a commercial public setting.[126]
Due
to the absence of copyright protection for fragrances, their dissemination in
public areas cannot be subject to regulation like to performances. When scent
designers use a legally protected trade dress, they are afforded the chance to
get a share of the economic value associated with this intellectual property,
since they have made a substantial contribution to its development, thus
providing some remedy to conundrum of protection of fragrance through intellectual property. [127]
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Article Information
INTELLECTUAL PROTECTION OF FRAGRANCES - WHY ARE FRAGRANCES NOT PROTECTED UNDER IPR.
Authors: SAAHEN SHARMA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/09/19
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
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