Court ruling heaven scent for IP lawyers

He was French, of course. Now, with fragrances a multi-billion-pound global industry, a recent, rather unrefined court dispute between two European perfume-makers has shown that at least one French company is not giving its scent away to anyone.

The decision of a Dutch appeals court in June, which held for the first time that a perfume could be protected by copyright, has been greeted with incredulity in some quarters.

The notion that the intellectual property (IP) right which once protected artistic creations like Dickens’ Great Expectations and Van Gogh’s Sunflowers could now be extended to smelly stuff which you put behind your ears, does, at first sniff, seem pretty whiffy.

The Dutch court ruled that the scent Tresor, created by the France-based perfume manufacturer Lancme, was a distinct combination of ingredients "not only measurable by the senses but also . . . concrete and stable enough to be considered an authored work, as intended in copyright law", even though it was a mixture of commonly known ingredients.

A scent called Female Treasure made by a Dutch company, Kecofa, was held to have infringed Lancme’s copyright, and the court ordered Kecofa to hand over all the profits it had made on the perfume since 1995.

This decision is surprising, and not a little worrying, because courts worldwide have traditionally held that smells cannot in themselves qualify for copyright protection, because they belong to nature, not to any one person or business.

Although the more limited protection provided by trademarking has been available for smells in this country since 1994, few smells have been trademarked (one notable - if slightly curious - exception being a "darts smelling of beer" trademark owned by Unicorn Products).

Only one of the several unwelcome aspects of this latest ruling is that it drives a small but significant wedge between the law of the UK and that of one of its EU partners in a field, intellectual property law, which is supposed to be harmonised throughout the Union.

Perfume firms are among the fiercest defenders of IP rights in their products - although, up to now, these have been patents and trademarks, rather than copyright.

Patents give a monopoly right to make, sell and use an invention for 20 years. Copyright can last for 100 years or more.

The Lancme ruling will now provide fragrance-manufacturers with another weapon for their IP enforcement armoury in at least one populous European jurisdiction.

Although Kecofa has said it intends to appeal against the ruling to the Dutch Supreme Court, and the European Court of Justice if necessary, commentators say that the decision is likely to stand, in the Netherlands at least. However, it is unlikely that the approach of the Dutch courts would be followed by their UK counterparts.

It is hard to see, for example, how smells could fall within any of the categories of work - literary, dramatic, musical or artistic - in which copyright can exist as required by the relevant UK law, the Copyright, Designs and Patents Act 1988. But the Dutch law under which the case was decided, their Copyright Act 1912, includes two broad categories absent from UK law: "works of applied art" and "generally any creation in the literary, scientific or artistic areas".

Thomas Field, an American law professor and former chemist, believes the ruling smells "bad, bad, bad, from a public policy standpoint".

"Where does it stop? Will new wines, or blends of spices and other condiments be copyrightable? If the law of the case stands, lawyers will be mining its golden ambiguity for many years," he said.

Hmm, Golden Ambiguity - sounds like a new fragrance which should be popular with IP lawyers everywhere ...

Stuart Skelly is a senior solicitor with Anderson Strathern