Copyright the perfume

Article L. 112-1 of the French Intellectual Property Code provides that all works of the mind are protected whatever their genre, form of expression, merit, or purpose, provided that they are original. Perfumes have recently provided a prime example in France and the Netherlands.

Article L.112-2 of the French Copyright Act

The following, in particular, shall be considered works of the mind within the meaning of this Code:

  • books, pamphlets and other literary, artistic and scientific writings;
  • cinematographic works and other works consisting of sequences of moving      images, with or without sound, together referred to as audiovisual works;
  • works of drawing, painting, architecture, sculpture, engraving and lithography;
  • graphical and typographical works;
  • Photographic works and works produced by techniques analogous to  photography.

In 2006, in the land of the world’s finest perfumes and fragrances, the French Supreme Court nevertheless ruled that ‘the fragrance of a perfume, which results from the simple implementation of a skill’ may not benefit from the protection of copyright. The French civil Supreme Court, the Cour de Cassation, reaffirmed on December 10, 2013 that perfumes are not copyrightable under French law.

Lancôme and the other companies argued that since article L. 112-1 of the French Intellectual Property Code (FIPC) protects “all works of the mind, whatever their kind, form of expression, merit or purpose,” the fragrance of a perfume is therefore a work of the mind protectable under French law. They also argued that a perfume is original, and thus protectable, because it shows the creative input of its author.

In this case, the Supreme Court, in a judgment of 10 December 2013 (11-19872), yet again maintains its position in a case concerning a Lancôme perfume, stating that ‘copyright only protects creations in their tangible form, so far as this form is identifiable with sufficient precision to permit its communication; whereas the fragrance of a perfume, which, outside its process of development that is not itself a work of the mind, is not a form that has this characteristic, and therefore cannot be protected by copyright’.

By Akshatha Karthik

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