When it comes to intellectual property, French law seems to have its favorite senses. While it recognizes and protects works that are sensitive to sight and hearing (the famous “major arts”), the so-called chemical senses of smell and taste clearly do not find favor in its eyes. On the grounds, namely, that they are particularly difficult to put into words, and that olfactory creation is a matter of know-how rather than intellectual creation: “a fragrance is not a work of the mind but a consumer product, and in any case presents no originality in terms of its development, which requires only the sense of smell and not of thought, nor in terms of its perceptible form, so that it cannot enter the realm of artistic property”. So ruled the French Supreme Court on June 13, 2006.
And yet, legal protection for perfume is essential: it’s the proliferation of copies and other counterfeits that has led to regular court referrals and a rethinking of the notions of copyright, industrial property and patent in a field where creation, marketing and technology coexist. To begin with, fragrance creation can simply be defined as the assembly of raw materials into complex, harmonious olfactory forms. Copyright protects a work of the mind, whatever its mode or form of expression: in the case of perfume, this medium of expression is the fragrance it releases, so it is the fragrance that should be protected, not the formula. Fragrance is not one of the works listed in Article L. 112-2 of the French Intellectual Property Code, but, as with trademark law, the list is not exhaustive (judging by the use of the adverb “notably”). To benefit from copyright protection, however, the work must meet two conditions: originality and creation of form. Originality, a criterion with no legal basis, is generally defined by jurisprudence as the personal imprint of the author, in this case the perfumer.
In a ruling handed down on June 13, 2006, the French Supreme Court (Cour de cassation) ruled that the design of a perfume was the mere application of know-how and did not constitute a creation. In its view, the imprint of personality was not apparent, and the condition of originality was not met. In December 2013, the Court reiterated its refusal of protection, this time on the basis of the absence of a character identifiable with sufficient precision: “copyright protects creations in their sensible form, only insofar as this form is identifiable with sufficient precision to allow its communication; that the fragrance of a perfume, which, apart from its elaboration process, which is not itself a work of the mind, does not assume a form presenting this characteristic, cannot therefore benefit from copyright protection”.
Nevertheless, perfumers are well aware that perfume creation is the result of an intellectual activity more than a sensory one, and that a fragrance cannot be reduced to a chemical formula. Indeed, when JK Huysmans describes Des Esseintes’ perfume-making process in his 1884 novel Against Nature, he emphasizes the artificial nature of the raw materials, which makes it possible to think of perfumery in terms of composition. He writes: « Actually, perfumes are almost never produced from the flowers whose names they bear; the artist rash enough to borrow his raw material from nature alone would produce nothing but a spurious creation, without authenticity or style, since the essence obtained by distilling the flowers can furnish only a very remote, very coarse analogy with the authentic fragrance given off by the living flower growing in the ground. Therefore, except for the inimitable jasmine, which does not admit of any counterfeit, any copy, any approximation even, all flowers are represented exactly by blends of alcohols and spirits, which usurp the very personality of the model, endowing it with that elusive something, that extra quality, that heady bouquet, that rare touch which is the stamp of a work of art. »
Regarding the “commercial” aspect of perfume creation, often conditional by a “brief”, Francis Kurkdjian, President of the ISPC, reasoned at a conference given at the Sorbonne (DATE?), “One of the arguments (…) is to demonstrate that a perfume is never created alone and that perfumers act on the basis of a commission or, as is often the case nowadays, compose as a group, under the influence of one or more third parties (the customer). I urge legislators to think about Bach, Mozart and all those musical composers who lived from their art in the shadow of benefactors or a prince. Imagine Bernini without the Borghese family, the ceiling of the Sistine Chapel without Michelangelo and his patron Pope Julius II. What then of a musical, contemporary pictorial or choreographic work composed as a result of a private or public commission? What about a ballet commissioned by the Paris Opera from Angelin Preljocaj, certainly helped by an assistant or influenced by a Paris Opera Ballet Prima ballerina who maybe suggested a movement, a posture. Some professions and artistic fields have succeeded in defining a common ground so that creation can take place harmoniously without taking away from either what belongs to them.” Legal recognition would also, incidentally, enable each stakeholder to be financially rewarded in proportion to their contribution…
This problem is not confined to France. English, American and German law are experiencing much the same hesitation as French law. In English law, in particular, the works eligible for protection are listed restrictively, and do not appear to include works that can be apprehended by senses other than hearing or sight. It does not cover fragrances. Only Dutch law has taken this step, with the “Hoge Raad” ruling by the High Court of The Hague on June 16, 2006, which held that the fragrance of a perfume is protectable by copyright in principle as a work. However, Dutch and French law are quite similar: a work must be original and perceptible. American law does not prohibit the registration of an olfactory trademark. Community law offers a glimmer of hope: the draft Directive on the recasting of trademark law and the draft Regulation on the European trademark aim to modernize and improve existing provisions by revising the definition of the trademark, with a new definition of the work that “does not restrict the admissible modes of representation to graphic or visual representations, but leaves the door open to the registration of objects that can be represented by technological means offering satisfactory guarantees”. The aim is to “allow greater flexibility in this area, while reinforcing legal certainty”. The future of copyright protection for fragrances is likely to lie in the technical progress that will enable them to be fixed on a permanent medium, thereby remedying their ephemeral, variable and difficult-to-objectify nature. And, above all, in the ability of perfumers to unite their voices and make them heard loud and clear – since the legislator, while lacking a sensitive nose, seems to have a keen ear.
