Perfume products are generally protected as inventions, although it is not the scent that is registered, but its chemical formula. Opponents of copyright protection of fragrance, pointing to the lack of an objective form of expression for perfume, argue in favor of the use of patent law in relation to the legal protection of fragrances. They believe that the perfume formula can only be patented. That is, according to paragraph 1 of Art. 1350 GK is a technical solution in the field of perfumery related to the product. For example, patent No. 2575778 “Perfume” specifies a perfume formulation, the combination of components of which has not been used before, and the main thing in this case is the combination of chemical elements. The inventive step lies in the fact that this composition has not been used before, and its industrial applicability lies in the possibility of its creation on standard equipment. It is also permissible to register a fragrance as an olfactory trademark, provided that the consumer has a clear association with a particular product. There is a known case of patenting a fragrance as an olfactory trademark - No. 470375 “Leather scent”, which is a combined designation consisting of pictorial, verbal, tactile, sensory and olfactory elements (genuine leather tag). That is, perfume can also be registered as a means of individualization, but only if the consumer associates it with a specific product. Cases of cancellation of olfactory trademarks are not uncommon. For example, if an unpleasant odor is registered, they may consider that it is contrary to public interests, principles of humanity and morality, and therefore such a mark can be canceled at the request of interested parties.
But the question of copyright protection of perfume still remains open.
However, the created aromas (perfume) can be attributed to the results of creative work, which means it can be assumed that they can be protected by copyright, from the point of view of which the created work must comply with such characteristics as objective form and creative work.
In accordance with paragraph 3 of Art. 1259 of the Civil Code of the Russian Federation, the objective form of a work is written, oral, pictorial expression, as well as sound or video recording, volumetric-spatial form, but there is no olfactory form among them, and therefore it is assumed that perfume does not have an objective form. However, this is a controversial issue. The absence of a direct mention of this form in paragraph 3 of Art. 1259 of the Civil Code of the Russian Federation, where, along with the mention of traditional forms, the existence of others is allowed, cannot be an obstacle to the application of copyright for the purpose of protecting a fragrance.
It must be taken into account that the objective form implies the ability to reproduce and perceive the work by human senses, and the aroma of a perfume, created by a combination of various chemical elements of a liquid form, can be reproduced in the same form as, for example, a painting by an artist reproduced by another artist, or a musical work by a famous composer reproduced by a musician.
As for perception, it is carried out with the help of the olfactory organs, which means there is the possibility of perception of aroma by the human senses.
Therefore, perfume has an objective form of expression - presented in liquid or solid form, perceived through the olfactory organs.
According to the criterion of “creative contribution,” which involves the reflection of the author’s personality in the work and consists in the novelty and originality of the work, a perfume can also be new and original, unlike existing fragrances or their chemical formula.
The creative contribution of the creator of the perfume can be confirmed by the fact that initially the future aroma is formed in the mind of the author in the form of an idea about the compatibility of certain of its shades. Subsequently, it is expressed in an objective form by combining the substances necessary to create the aroma, which means that the criterion of protectability is applicable to it. For this reason, we can say that most perfumes are created through creative work and they reflect the personality of their authors.
However, in practice it is known
on the inadmissibility of recognizing perfume as an object of copyright (for example, the Supreme Court of France considered that perfume can only be protected as know-how, since it does not reflect the personality of its creator and there is no sign of the author’s creative contribution).
However, there is other judicial practice, according to which a fragrance can be classified as copyrighted. For example, the French company Lancome filed a lawsuit in the Dutch court against the Dutch company Kecofa, citing copyright infringement. Kecofa has launched Treasure perfume with a similar Tresor scent from Lancome. The court found Kecofa to be a copyright infringer and concluded that:
- the aroma of perfume has an objective form, as it is perceived by the olfactory organs;
- aroma and liquid with aroma are different objects (the court compared a sheet of paper that is not the object of copyright, although it contains text that is the object of copyright);
- if a perfume reproduces the scent of roses, then it cannot be protected by copyright, since the perfumer must make a creative contribution to the composition, whereas the scent of Tresor perfume met this criterion.
There are few such practical cases, but it can be assumed that this issue will be resolved in the future.
In conclusion, I would like to add that granting copyright protection to a perfume can provide the opportunity to effectively protect the rights of its developers, who, in turn, will not be able to abuse the exclusive right to the fragrance they created, since the law provides for ways to freely use the work, for example, for personal purposes.
But since there is a certain legal uncertainty regarding the recognition of a fragrance as a protectable object from the point of view of copyright, there are very few applications from companies wishing to assert their rights.
