Copyright

NETHERLANDS

The right to fragrance-a copyright case in the Netherlands

The Supreme Court in the Netherlands has decided that the scent of perfumes can be protected under copyright law. This could mean that anyone wearing perfume would have to pay a licence fee every time the perfume is worn n public, e.g. at work or in a restaurant.

The French cosmetics company, Lancôme, sells an exclusive perfume under the name of Trésor. The Dutch company Kecofa sells a perfume called Female Treasure at a considerably lower price. Lancôme has twice tried to prosecute Kecofa for trademark infringement, without success. But a Dutch court accepted Lancôme's argument that the actual scent in Trésor is protected by copyright law.

The case was referred to the Dutch Supreme Court, which decided that scents can, in principle, be protected, as long as they are perceptible and represent some form of originality. The Supreme Court did not, however, reach a verdict on whether the scent of Trésor is protected under copyright law.

Licence fee for perfumes?

The Dutch Supreme Court recognises that its interpretation may have complex consequences. If the scent of a perfume is protected by copyright law, it would, in principle, mean that consumers would have to pay a licence fee every time they wear the perfume in public. The Advocate General, who acts as an advisor to the Dutch Supreme Court, therefore believes that exemptions from the Dutch Copyright Act will have to be created to deal with this type of problem.

Perfume manufacturers are not artists