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Scent... Copyrightable?

Wed, 27 Jun 2006 15:52:00 EST

An unprecedented case in French court of appeals last February held that scents are qualified for protection under copyright laws. In L'Oreal vs. Bellure N.V., Bellure was held liable for copying a number of L'Oreal's fragrances. This lead the way for another such case in the Dutch Supreme Court earlier this month where L'Oreal sought to disgorge profits from Kecofa's knockoff scents, and won. Should scents really be considered works of art, do their creators orchestrate scents with 'notes' of diverse fragrances?

"In the U.S. scents applied to other goods can serve as trademarks, and newly created or isolated aromas may meet the criteria for patent protection. In order to maintain the distinction between useful inventions and literary or artistic works, however, copyright protection does not extend to either processes or useful articles -- and thus aromas that might be patentable are excluded from copyright protection. Mere discoveries, e.g. natural scents, are not eligible for either patent or copyright protection.

It remains to be seen whether the U.S. will follow the lead of the Netherlands and France and consider copyright protection for perfumes formulated by expert 'noses,' who choose among thousands of potential scent notes to create pleasing combinations. Are perfumes more like recipes, which are generally unprotected (despite recent controversies), or musical compositions?"

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