【Research Center for the Legal System of Intellectual Property】

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European Precedents on Copyrightablity of Perfumes

Visiting Researcher Toshitaka Kudo

"Scents" cannot be seen, but surely exist in a scientific manner. No one would deny that scents have some power to appeal to people. Scents seem to be similar to sounds (music) when we think that originally, they are scattered incidentally and randomly in nature and are adjusted by human hands to have the power to impress people. However, while music is a typical copyrightable subject matter, works of perfumes are not included in the list of copyrightable works (See Copyright Law, Article 10 Section 1). For example, many people in Japan might feel negative about considering perfume as a production in which thoughts or sentiments are expressed in a creative way (Copyright Law, Article 2 Section 1-1).

If we look at foreign laws, France has affirmative opinions about confirming works of perfumes as protectable under the Copyright Law. As one of well-kwon precedents, the judgment of the Paris Tribunal de Commerce (Commercial Court) of September 24, 1999 in the case of Thierry Mugler Parfums affirmed the copyrightability of general perfumes as well as the originality of the perfume in question. However, the court rejected the claim to the infringer because of the fact that the defendant did not receive a valid transfer of the copyright in this case. This year the Cour d'Appel de Paris confirmed the copyrightability of perfumes and accepted the claim for damage, based on the copyright infringement. But, in the appeal hearing, the originality of the perfume was rejected (the judgment of Cour de Cassation, Chambre Commerciale of June 20, 2006 in the case of L'Ore'al' v Bellure). However, France strongly protects domestic industries because it has famous perfume-producing area or luxury brands. It seems difficult to conclude that the discussion about the originality of perfumes came to an end immediately. On the other hand, the Supreme Court of the Netherlands gave a decision to affirm the originality of the perfume recently (the judgment of the Supreme Court of the Netherlands of June 16, 2006 in the case of Lanco^me v Kecofa). The judgment provided a detailed analysis and included profound suggestion that cannot be attributable only to avant-garde legal thought unique to the Netherlands.

Although not so many Japanese people regularly use perfumes, Japan has the depth of traditional makings to enjoy scents as one of fine arts like Kodo, the way of incense burning. The makings are no less inferior to those of the Western nations. It must be pleasant for Japanese to show the world this time around that Japan "has a good nose" in the discussion of the copyrightability of works of perfumes.