WHERE ARE THE PERFUMER′S CREDITS???

It is astonishing that Perfumers are not systematically credited with their olfactive creations. Think of movies, paintings or music.. it would just be unthinkable not to credit the author of the movie, painting or song.

As an industry, we regulate precisely the information that we need to give consumers (for example legal text on the box).. and yet no mention of who created the scent??

At the root of the problem is that Scents are not considered works of art because they are not sufficiently “visible-describable-understandable” and therefore the clear identification to the public becomes tricky.

The authorship of scents falls in a “sensorial legal void”.?

What are the forms of authorship protection and why does it fall short for perfumes?

(1) Intellectual Property (copyright)

First problem. Perfumes are not recognized as a work of art by legislation.

Example of French law: The Intellectual Property Code?assimilates the process of perfume creation to a implementation of a know-how, not protectable by French copyright, and rejects the identification of a form of creation (art form) through the sense of smell.

Paradoxically, a Perfumist can make a perfume and a song inspired by it. However it can only protect the soundtrack and not the scent.

This position generated some resistance from trial judges and doctrine (TGI Bobigny, 28 nov. 2006 ; CA Paris, 14 fevr. 2007 ; CA Aix-en-Provence, 10 dec. 2010).

After some controversy, the Cour de Cassation reviewed its position on the matter but without opening the door to the protection for olfactory creations, considering that: copyright protects creations in their sensitive form, as long as it is identifiable with sufficient precision to allow its communication (Cass. Com., 10 déc. 2013, n° 11-19872).

Second problem: There is no standard to identify a scent with precision in a commonly understandable way (unlike music).

A missed opportunity? Couldn′t we use technology to "visualize-record-explain" the sensorial experience of a scent in its unique form?

Unless we advance on the issue of identification of scents, the attribution of perfumes to their creators will remain fuzzy.

Unfortunately, it is only on the grounds of parasitism and unfair competition that today the perfumer can rely on in case of unauthorized reproduction of the fragrance, as shown by?the Lanc?me decision.

(2) Trademark protection: An issue of visualization?

A fragrance can be registered as an olfactory trademark before the Intellectual Property French Office (INPI). However, for a long time, this registration of an olfactory trademark was a problem since it could not be represented graphically.?Since March 23, 2016, the “Trademark Package”?removed this requirement in favor of the olfactory trademark.

Henceforth, the trademark may be protected as soon as?it can be represented in any appropriate form through available technology.

However, in practice, the registration of olfactive trademarks remains unusual because of its complexity.?

Good news for trade mark legislation. The importance of the olfactory cognitive memory, or the complexity and originality of the creation process, can be illustrated with technology.

Today we can visualize scents in many ways .

?(3) Patent protection: Not really applicable

Patens protect new inventions. A smell could only be protected by patents if it is new, industrially applicable and provides a solution to a concrete problem; conditions that are not met by perfumes. The only thing which can be patented is the composition to achieve that particular fragrance. Lastly, if a perfumers develops a novel way to manufacture or synthesize a perfume from its natural or chemical ingredients, then that new or novel process can be patented.

In any case, the patent would only grant protection for 20 years, after which the formula would have to be published. Many bestsellers have been around for much longer than that like Chanel 5

In summary, the 2 formulas that could grant protection (IP and Trademark) are failing perfumers because we have not found a way to visualize their creations in a unique understandable way (like a music composition). However, it′s time to rethink the subject as technology brings in new ways to precisely overcome the shortcomings of scent visualization.

Some references:

1. https://www.dreyfus.fr/en/2021/07/27/fragrance-and-intellectual-property-which-protection/
2. https://www.lexology.com/library/detail.aspx?g=30a8bdbd-00b0-4161-89de-698bd6206e9c
3. Article in Linkedin: https://www.dhirubhai.net/pulse/intellectual-property-perfumery-kartik-kumar-aggarwal-advocate/ by Kartik Kumar Aggarwal, Advocate