More on Perfume IP

The New York Times ran a story yesterday [reg/$$$ req’d] about intellectual property protection for perfumes, a subject on which I posted last week. There is already interesting comment on the story from both Frank Pasquale at and Susan Scafidi at Counterfeit Chic.

The Times story also shows that the legal situation in France is even more muddled than I had indicated. There are two decisions on the issue of IP rights for perfumes, one going each way. Explains the Times:

[Last month], the Cour de Cassation [France’s highest court], denied the petition of a perfume maker, who claimed she deserved to continue receiving royalties from a former employer, even after she had been fired. The court stated, “The fragrance of a perfume, which results from the simple implementation of expertise,” does not constitute “the creation of a form of expression able to profit from protection of works of the mind.”

To confuse matters, a French court of appeals ruled the opposite last January, determining that a perfume could be a “work of the mind” protected by intellectual property law. It ordered a Belgian company to pay damages to the perfume and cosmetics giant L’Oréal, which sued it for producing counterfeits of best-selling L’Oréal perfumes.


Under French law the high court does not function like the Supreme Court in the United States, so its ruling does not set aside previous verdicts and leaves the issue open to interpretation.

It’s a Split des Circuites!

These disputes also manifest another difference between IP law in the United States and France, beyond our treatment of perfume. In the US, the employee’s creation would almost certainly be a work for hire and the company would therefore own any IP rights in it anyhow. In France, because of the moral rights doctrine, the employee had a potential claim.

5 Responses to “More on Perfume IP”

  1. […] The passing of the Reverend Jerry Falwell will no doubt be a cause for sincere mourning among a set of individuals that, as it happens, does not include me. But on the principle that the three of us can find an Info/Law angle on practically anything (from the Super Bowl to baby naming to perfume to a rap about tax preparation software), it’s worth noting that Reverend Falwell’s legacy includes a fair amount of info/law jurisprudence — some of it surprisingly friendly towards consumers and users of digital content. […]

  2. I can see why she sued, because it evidently was her creation. I dont know how it works in France, but here in the states alot of companies claim that anything you develop while in their employment is the property of the employer, which can get sticky.

  3. The law can get very sticky. Sounds like they couldn’t make up their minds either.

  4. Not much the perfume maker can do. That person should have known that they have no legal rights when they use another companies products to make a new perfume. No leg to stand on there.

  5. This has to be a tough thing to police.