Case
Facts
The case involved a
‘Copyright’ war between the 17.2 billion dollar French
cosmetic giant, L’Oreal and Kecofa, a 12.3 million
dollar Dutch cosmetician. L’Oreal manufactures and sells
an exclusive and expensive perfume called Treasure (Tresor),
an allegedly cheap imitation of which Kecofa offers to its
customers under the name of ‘Female Treasure’ and at
one-tenth the price of Treasure. Affected by the sales of
Female Treasure, L’Oreal attempted to stop Kecofa by
filing a suit for trademark infringement, alleging that
the name 'Female Treasure' was likely to cause confusion
about the 'Treasure' brand, but failed. L’Oreal then
filed a copyright infringement suit against Kecofa,
alleging Kecofa to be imitating its fragrance of
Treasure.
Issues
-
Whether
smell can be the subject of copyright?
-
Whether
Kecofa infringed on L’Oreal’s copyright over
Treasure, by making and selling a similar smelling
Female Treasure?
Analysis
Under the
Dutch Copyright law, anything that is perceptible and
original can be the subject matter of copyright. The Court
observed that as long as the smell of a perfume is
original and perceptible (even if perceptible only through
the nose), it can be copyrighted. It said that a perfume
may be copyrighted when it smells different from a
pre-existing one, even if the ingredients used in making
it are not any different.
L’Oreal
argued that the perfume’s fragrance is a creative work
because Treasure is an exclusive fragrance created by a
unique combination of 26 ingredients and that such a
combination, by itself, would make it a work of art. The
fragrance itself need not be new. As long as the maker
puts his own creativity into making the fragrance, he is
entitled to copyright it. The court agreed and said that
L’Oreal's Treasure is copyrightable as a work of art.
L’Oreal
submitted a chemical analysis report to show that Kecofa
used 24 out of Treasure’s 26 ingredients to make the
imitative Female Treasure. Since imitation amounts to
infringement under Copyright law, the court held that
Kecofa infringed on L’Oreal's copyright on frangrance.
