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  • 21-07-2016

In its decision dated 16 June 2006, the Dutch Supreme Court has denied an appeal against the Court of Appeal's ground breaking decision in July 2004 in favour of Lancôme. In its decision dated 16 June 2006, the Dutch Supreme Court has denied an appeal against the Court of Appeal's ground breaking decision in July 2004 in favour of Lancôme.

The importance of this case is twofold. Not only is it a justified recognition of the creativity involved in making a perfume, but it also shows that intellectual property law is still open to change and innovation and that thorough legal analysis, in combination with sophisticated research methods, can lead to solutions that hitherto seemed unthinkable.

As counsel for Lancôme, Professor Charles Gielen at NautaDutilh, succeeded in convincing the courts that the blend of ingredients used in Lancôme's product Trésor constituted an original work of authorship and that the cheap perfume produced by the defendant could only be classified as nothing more than a deliberate imitation.

In July 2004, the Dutch Court of Appeal decided that the cheap product of the defendant was an infringement of Lancôme's product. A physicochemical analysis had shown that the two perfumes had 24 olfactory components in common and that there were only two components of Trésor that had not been used by the defendant. The probability of a perfumer other than Lancôme independently and coincidentally creating a perfume containing 24 of the 26 olfactory components of Trésor was shown to be about the same as that of winning the lottery every day over a period of a hundred years. The Supreme Court has now established that the scientific evidence brought by Lancôme was indeed admissible proof of scent-imitation.

The highly creative process of developing this particular perfume was convincingly explained to the courts, which decided that Trésor should be considered as having an original character bearing the personal imprint of its creator, thus entitling it to copyright protection in the Netherlands. In view of this and the improbability of the resemblance to Trésor being coincidental, the Court of Appeal concluded that the defendant had deliberately and unlawfully infringed Lancôme's copyright.

In this landmark decision, the Supreme Court has confirmed that the scent of a perfume can indeed qualify for copyright protection. As for all copyright protection, the scent of such a perfume would have to be original. It is the scent itself that is the object of the copyright, not the substance that produces the scent. Even though the Supreme Court also acknowledged that some provisions of the Dutch Copyright Act could not apply to scents, it considered that that does not mean that the author of an original fragrance should have no claim to copyright protection against counterfeit.

The Court of Appeal of Den Bosch had already ruled that Kecofa's product was an imitation, which decision it based on both a study with test subjects and a chemical analysis. That such evidence is possible and therefore allowable for furnishing proof of imitation has now been established beyond doubt by the Supreme Court.

Although it would be too sweeping a statement to claim, on the basis of the above decision that all perfumes are copyright-protected in the Netherlands, it is now clear that those perfumes that are original products of creative minds deserve the same protection against imitation as other original creations.

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