Does perfume smell have its own copyright?

[Alok Rudra]

While reading an article I came across with a very interesting judgment and thought sharing with you all. In case readers have any information on the subject matter, kindly forward it for knowledge sharing.

Copyright is a form of intellectual property which gives the creator of 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. 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.  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.

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.

Conclusion:
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 claimants’ and pre-existing scents.

Indian Context:

Indian law is still silent on issue and there is no such case reported on this aspect of copyright.