Kecofa vs Lancôme: Perfume protected by copyright law

Supreme Court of the Netherlands, 16 June 2006. Judgment in the case between Kecofa B.V. and Lancôme Parfums Et Beauté et Cie S.N.C.,

“Upon examining this count it is a priori that it does not contest that a scent – always including hereinafter: a scent combination – may qualify for protection under copyright law. This starting-point is correct. The description laid down in Art. 10 Aw, next to the non-exhaustive listing of types of works, of what must be understood to be a ‘work’ in the sense of this Act, is put in general wording and does not prevent from comprising a scent in this. This implies that as to the question of whether a scent qualifies for protection under copyright law, or not, it is decisive whether this concerns a product which is open to human perception and whether it has an original character of its own and bears the personal stamp of the maker.

The notion of work in the Auteurswet does find its limits where the original character of its own is no more than what is required to achieve a technical effect, but seeing that in case of a perfume there is no purely technical effect, this last condition does not prevent the award of protection under copyright law to the scent of a perfume. The circumstances that the properties of the human olfactory sense put limits to the ability to distinguish scents and that the level to which one can distinguish different scents differs from one person to another, does not alter the above, nor does the circumstance that the specific nature of scents has the effect that not all provisions and restrictions in the Auteurswet can directly apply to this seen for instance the use of perfume which cannot be denied to the ordinary user and which by its nature necessarily implies spreading of the scent.

For copyright law to apply a scent cannot be identified either with the substance or substances which make the scent. This substance or substances operate as – not necessarily exclusive – incorporation of the work which is the scent, and they also contribute to that the scent should not be excluded from protection under copyright law for being too volatile or instable. In a perfume the scent therefore has to be distinguished from the mixture of substances which the perfume is composed of and which the gaseous olfactory substances which cannot be perceived with the olfactory organ are released from when exposed to the open air.”

Read the entire judgment here (translation made available by Charles Gielen, NautaDutilh).

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