Netherlands - Protection of Perfume Composition by Copyright

Lancôme claimed that the defendant Kecofa, a Dutch company, had copied Lancôme's perfume Trésor and brought an action for copyright infringement. The district court held that copyright protection could not exist in a perfume formulation. Lancôme appealed. The Court of Appeal in Den Bosch reversed. On the question of whether copyright protection could exist, the court found that two issues had to be considered: 1) whether the nature of the work was such that it was capable of protection and 2) whether the perfume had sufficient "original character" to qualify for protection.

On the first issue, the court distinguished between the substance of the perfume and its smell and decided that the case before it related to the composition of the substance in question not its fragrance. Article 10 of the Dutch Copyright Law provides that copyright protection can exist in any creation in the literary, scientific or artistic areas, whatever the mode or form of its expression. The court's concern seems to have been whether the perfume was sufficiently stable to constitute a "work" under this definition. Once it had concluded that what was being considered was the substance of the perfume composition and not its smell, it found that the requirement was met. On the question of the requirement for "original character", the court found that twenty-five olfactory compounds were blended together to create the perfume. The court was satisfied that the evidence put forward by Lancôme as to how these were chosen and blended "illustrated the creative development process and original character of the perfume."