Secret and jealously guarded formulas, the perfumes are born from a sensory research activity and the combination of elements that give life to a unique fragrance which, as such, can become the object of reproduction attempts .
The legal system offers various tools to protect creative and original works but beforeentering the'
Western culture has always focused a lot on the sense of'hearing and sight considering smell and taste as secondary, less interesting senses.
Philosophers such as Plato and Aristotle, for example, accused the sense of smell of offer pleasures that are less pure than other senses, due to the close connection with lust and instinct. Later Buffon linked it to the animal dimension, while Kant denied it any aesthetic character. Even today Bernard Edelman, French jurist and philosopher , maintains the distinction between the "noble senses" that address intellectual abilities and the “vulgar senses”, including the sense of smell, which refer toanhymalism.
Precisely as a consequence of this lack of attention to the world of smell, perfumes have complex legislation and incomplete in matters of the legal protection of fragrance.
To give an example, in 1988 Maurice Roger, ex Ceo of DIOR Parfum, claimed that:“There is no artistic or intellectual property in our specialty”.
In fact, until recently, disputes in this sector were rare and more often concerned the container and not the content. Name, packaging and bottle still enjoy the protection of the brand, design or patent even if in reality they only represent accessories of the perfume in its literal meaning.
Only after the'perfumery industry began to become sensitive to new technologies such as Gas Chromatography (GC), did counterfeiting phenomena occur which represent enormous damage to essential homes. As a result, in recent years (like the media and entertainment sectors) the perfume industry has also vigorously pursuedentity
Here are the main ones:
• Protection of perfumes through PATENT
Patent protection represents the most powerful tool offered by intellectual property to protect new, original and useful inventions.
The legal systems recognize and guarantee the patent holder a'exclusivityfor twenty years on production and sale, but this exclusivity corresponds to the disclosure at the time of registration of information relating to the composition and use of the product and this information then becomes in the public domain when the patent expires.
For this reason, the perfume industry does not rely particularly on this mechanism for the protection of fragrances: few manufacturers would agree to fully disclosethe invention in order to obtain twenty-year protection.
Furthermore, a second obstacle to the use of this form of protection is representedby the utility requirement. An invention must be useful to be patentable. More than being really useful, fragrances representan element of pure "luxury", on a par with jewelry products. The few registered patents are in fact based on the useful capacity of the product to replace harmful odors or to promote physical and mental health.
• Perfume protection by COPYRIGHT
Getting copyright protection is definitelyeasier than getting it throughite patent protection. The copyright is automatically granted once the 'originality of the creation has been demonstrated, moreover the validity time is longer than the patent protection (about 50-70 years after the death of its author).
However, in the world of perfumes, even obtaining this legislative form does not seem to be easy, as demonstrated by these two cases.
In the early 70s' in the caso Rochas vs De Laire
More recently in Bsiri-Barbir v Haarman&Reimer, the French Court of Cassation ruled that perfumes “are not eligible for protection under French copyright law because they are a product of the application of purely technical knowledge and lack, therefore a discernable association with the individual personalities of their creators ”. Basically for the Court, perfumers work as craftsmen, not as artists.
The obstacles that arise in relation to the applicability of copyright in this context relate in particular to the fact that it will be the fragrance itself that will be protected and not its formula. In fact, copyright protects an artistic creation, whatever its form of expression. For perfume, this means of expression is fragrance. However, since it is a question of comparing two fragrances and not two formulas, two problems arise: one relating to the ephemeral nature of perfumes, the other relating to the difficulty of making a t13>technically objective description of the fragrance itself.
However, some judges recognize the quality of fragrances as artistic creation, expression of the personality of its author. An example is the case Mugler.
Thierry Mugler claimed that the fragrance house Molinard had sold a "smell-alike" product of its famous fragrance “Angel”. The success of this perfume has been attributed to its unusual "gourmand essence" with strong culinary notes evoking the scent of cotton candy and caramel.
The Tribunal de Commerce in Paris agreed with Mugler's statement that "Angel" is a copyrighted work. In this case the Court associated the creation of a fragrance with the composition of a musical score and suggested that the different perceptions and reactions to “Angel” were analogous to those generated by a musical work.
Since the Victorian era, in fact, perfumes have been described in the vocabulary of music. Even the perfumer of Marie Antoinette, Jean-Louis Fargeon, described the perfume as a musical composition, fruit of creativity.
• Protection of perfumes through COMPANY TRADEMARK
In the last decade, protection through trademarks has undergone a notable evolution which has led to the creation of the so-called atypical trademarks, which include olfactory signs.
However, in practice, the registrability of perfumes as trademarks has been hindered by most jurisdictions, especially the Community and the United States as the category still prefers the registration of signs (or trademarks) clearly distinguishable and recognizable visually .
• Perfume registration through CONTRACTUAL INSTRUMENTS
Given the complexity of applying intellectual property law to the perfume industry, large companies decide to take advantage of contractual protection, to maintain exclusivity in the market. In particular, the so-called confidentiality or confidentiality clauses represent an important strategic tool in this context.
Behind the production of perfumes there is in fact an immense network of contracts. First of all the contracts on the raw materials used to produce the fragrance, concluded between suppliers and producers. To avoid the leakage of information we can find confidential clauses binding the supplier to secrecy regarding the quantity and price of the flowers supplied to the industry.
Furthermore, to limit the circle of people aware of sensitive information, large multinationals often decide to rely on a single supplier of raw materials for the entire duration of the business. Contracts that include the long-term exclusivity guarantee on the production of certain flowers, necessary to obtain the fragrance, are therefore frequent in this area.
An example is the fashion house Chanel, which concluded such an exclusivity agreement with the Mul family, for centuries a producer of jasmine . In fact, we find the extraction plant Chanel immediately adjacent to the cultivation.
The formula n. 5 is precious thanks to the symbiotic relationship, cultivated for many decades, between the supplier of raw materials and the fashion house. The advantage of this form of protection is that there is no need for registration (thus eliminating the related costs) and no formal requirements need to be met. Furthermore, protection is guaranteed as long as the secret is kept that way. But once this emerges, the only means available to obtain reparation for the damage is to resort to contractual instruments.
However, it should be noted that the European legislator, in the aforementioned directive, provides for cases in which the acquisition of a trade secret is considered lawful. Among these is the hypothesis of "observation, study, disassembly or testing of a product or object made available to the public or lawfully in the possession of the person acquiring the information".
This method, applied to the context of the perfume industry, corresponds to the gas-chromatography-mass spectrometry (GC-MS) technology, which allows for the accurate analysis of the chemical composition of a substance, thanks to a separation process based on the weight of the molecules that compose it. In this way, not only the chemical substances are identified, but also their precise quantity within a product, making it possible to reproduce an exact perfume.
Dr. Federica D'Incà - COSMAST Master in Cosmetic Science and Technology
"Every woman has the right to be beautiful" - Elizabeth Arden