As related by Chandler Burr in his 2002 book, "The Emperor of Scent," perfumes generate about $20 billion in annual sales. A Dutch appeals court has now ruled that their compositions, historically protected by patents and trade secrets, are also covered by copyright. The law firm that represented French plaintiff, Lancôme, in its suit against Kecofa seems to accurately describe the ruling as "internationally groundbreaking."
Because much interesting background is provided in a widely carried AP story by Toby Sterling (July 22), I focus mostly on key language from the decision. The translation was kindly provided by Annemarie Field. Admitted in Massachusetts, Annemarie holds Dutch and U.S. law degrees. *****

To determine whether a perfume can claim copyright protection, a two part test must be satisfied: (a) is the product a "work" as defined in the Copyright Act of 1912? (b) does this work have an original character which carries a personal stamp by the maker of the work?
A.
The Court distinguishes between the material that gives off the scent (the material that is specially developed to produce a certain scent), and the scent itself. Considering that the scent itself is too fleeting and variable and dependent on the environment it can not be protected by copyright laws.
However, the Court holds that the material that gives off the scent can be perceived through the senses and is sufficiently concrete and stable to be considered a "work" under the Copyright Act.
Defendant Kecofa argues that the perception of the perfume is too subjective to be a "work." But the Court says that perception is always somewhat subjective. The material that gives off the scent, however, is a designed composition of ingredients that is most certainly objectively perceivable.

B.
Lancôme claims that its perfume has an original character carrying a personal stamp of the maker because the perfume came forth out of a carefully designed process. Lancôme chose 26 ingredients out of several hundreds of ingredients that led to this specific combination, which was very popular upon its introduction to the public. According to the Court, this proves that the perfume has an original character.
Kecofa counters that the perfume fits within a long tradition of perfumes with a feminine, fruity and flowery character. Moreover, Trésor is comparable to Eternity by Calvin Klein and it was a derived from Exclamation by Grosjman according to Kecofa.
The Court notes that in order to receive copyright protection the work does not need to be new in the objective sense. It needs to be subjectively original viewed by the maker. Kecofa carries the burden of proof to show that Lancôme based its perfume on someone else's. The fact that the perfume fits a certain style or tradition is insufficient to declare it unoriginal. Furthermore, Kecofa submitted insufficient evidence that Trésor was based on Exclamation. Also, Kecofa did not contradict the evidence Lancôme showed regarding its originality through its creative developing process.
Therefore, Trésor can be defined as a work under the Dutch Copyright Act of 1912. ****

The Court thereafter found infringement and ordered that profits be disgorged. Although the amount involved in that case is small, more than one product is implicated. Kecofa intends to ask the Dutch Supreme Court -- and possibly other European courts -- to review.

This decision seem likely to be reversed, but the stakes are high, particularly in light of other compositions that might enjoy copyright protection. Sequels thus warrant wide interest and close attention.