For some, it’s the scent of a new-mown lawn. Others prefer the bewitching aroma of fresh-ground coffee. Still more may remember the heavy bouquet of that exceptional Bordeaux, or the special fragrance of a first love’s hair.
Whatever the smell that does it for you, a landmark Dutch court ruling could soon mean that if you can bottle it, you will own it. A scent, every bit as much as a photograph, a painting or a poem, is now subject to copyright.
The ruling, from an appeal court in Den Bosch, has sent the rarefied world of perfume-making into a tailspin.
”If this becomes jurisprudence, it has vast implications,” said Cyril Bernet, scientific director of the prestigious International Perfume Institute in Versailles, which trains new ”noses” to create the next generation of top fragrances.
The court ruled that the intellectual property rights of the chic Parisian house of Lancôme in its fragrance Trésor had been been violated by Kecofa, a small Dutch maker of cut-price perfumes which markets a remarkably similar scent called Female Treasure.
Bernet said that up until now there has been no way to properly protect perfumes themselves — ”just their names, brands and packaging” — and the Dutch ruling could trigger a landslide of similar lawsuits elsewhere.
”There’s a huge amount of copying in the industry,” he said. ”Thousands of small cut-price companies deliberately try to imitate the composition of a big-name perfumes. Up until now the legislation in the field has been non-existent, but basically it’s like doing a cover version of a song – except without paying a copyright fee.”
But Leon Meels, a spokesperson for the Dutch firm, said Kecofa was so sure of its competitive right to make a similar, cheaper version of Trésor — a ”radiant blend of sensuality, harmony and emotion” that sells for roughly 10 times the price of Female Treasure’s â,¬4-â,¬6 (£2.60-£4) a bottle — that it will appeal against the ruling to the Dutch supreme court and the European court of human rights.
Artwork
”Who’s to say that two smells are precisely the same?” he demanded. ”And who’s to say a perfume is an artwork, not just an industrial product using common ingredients like, say, lemonade?”
The battle raises intriguing physical, philosophical and artistic questions – as well as some big commercial ones.
Kecofa, based in the small Dutch town of Kerkrode, employs 70 people and books annual sales of about â,¬10-million; Lancôme’s parent company, L’Oréal, has 50 000 employees worldwide and turns over â,¬14-billion.
Meels said that the company’s profit margins were so small that the cost of paying an extra accountant to figure out its past earnings from Female Treasure would likely be greater than the earnings themselves. The court also ruled that Kecofa should also pay around â,¬25 000 in court fees and other costs.
Perfume makers usually try to defend themselves from cheap copies of their expensive scents by imposing strict secrecy vows on their staff, or even patenting a fragrance as an olfactory invention.
Test cases
In a number of test cases elsewhere in the world, courts have ruled that smells themselves are simply too evanescent and too variable to be protected by copyright, and can by rights only be said to belong to nature.
But in a series of decisions, Dutch courts have decided that Lancôme’s perfume — created by the well-known ”nose” Sophie Grossman, who dubbed it her ”Hug me” perfume — is composed of an original blend of ingredients that is ”not only measurable by the senses but also … concrete and stable enough to be considered an authored work as intended in copyright law”.
The court decided that Trésor had ”an original character bearing the personal imprint of its creator”, and was thus entitled to copyright. It was careful, however, to extend protection only to ”the bottled scent-generating substance” rather than to the airborne scent itself, which was considered too transient to be copyrighted.
Lancôme in Paris declined to comment on the ruling. But the company’s lawyers hailed the decision as groundbreaking, saying it was the first time that a court had ruled, on the basis of physico-chemical analysis and the laws of probability, that a perfume was entitled to copyright protection in the same way as a work of art.
”The analysis showed that the two perfumes’ had 24 olfactory components in common and that there were only two components of Trésor that had not been used by the defendant,” said Pieter de Weerd, an associate with NautaDutilh, the Dutch firm that represented Lancôme.
”In addition, the only component that was unique in the defendant’s perfume was … a cheap substitute for the musk used in Trésor. The probability of a parfumeur other than Lancôme independently and coincidentally creating a perfume containing 24 of the 26 olfactory components of Trésor was shown to be about the same as that of winning the lottery every day for 100 years.”
For the uninitiated, Trésor’s specific olfactory ingredients are listed as: Top Notes Peach, Apricot, Pineapple, Bergamot, Green Note; Middle Notes Rose, Orris, Lily of the Valley, Jasmin, Heliotrope; Base Notes Sandal, Cedar, Musk, Amber, Vanilla, Cinnamon.
”The work of a parfumeur is the work of an artist, choosing from a vast palette of say 3 000 options and coming up with an original creation,” Bernet said. ”A top nose may create four or five big new scents in his career — imagine how he feels if that work is pillaged by some guy in a lab who takes three months to synthesise and copy something it’s taken a lifetime’s experience to produce.”
But according to Kecofa’s Meels, ”most perfumes actually have about 150 ingredients, and about 70% of them share the same ones”.
To prove its point that perfume is a product like any other, the company says it is busy working on a replacement for Female Treasure that will have ”exactly the same odour” and yet be composed of entirely different ingredients.
A rose by any other name …
We have tinkered with smells since Egyptian times.
Then, incenses were used in religious rituals and scented oils for fragrancing the body.
But not everyone wanted to smell good. ”I would rather smell of nothing than of perfume,” said the Roman emperor Marcus Aurelius.
In Europe, perfumed gloves became popular in France in the seventeenth century, and by the eighteenth century perfume manufacture had taken off with the invention of eau de cologne, a blend of rosemary, neroli, bergamot and lemon.
The American writer Elbert Hubbard defined perfume as ”any smell that is used to drown out a worse one”.
But a life without smell is a miserable one. ”Ninety percent of people who lose their sense of smell become very depressed or anxious,” says Alan Hirsch, of the Smell and Taste Treatment and Research Foundation in Chicago. ”They can’t detect the free-floating valium that the rest of us can smell.”
In the animal world smell is essential for survival — antelopes flee at the whiff of a lion, while dogs can sniff out their dinner from miles away. Cats have fives times more space in their noses devoted to detecting smell than people do, and some dinosaurs had extra-fleshy nostrils for sniffing out danger.
When we smell, we detect particles of whatever it is that is giving off the smell. Once the particles reach the nose they activate a set of receptors. This creates a ”signature” for that smell; neurons send a signal to the brain and the body decides whether to respond.
For humans, as for animals, one of the most important roles of the sense of smell is as an early warning system.
During the Middle Ages, Europeans thought that the plague was spread by its smell.
The instinctive link between smells and danger persists in other ways. For example, says Dr Hirsch, ”yawning allows us to get more air into our mouth and nose, to see if it is safe to go to sleep”. – Guardian Unlimited Â