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Protection of Fragrances

By Olivier Banchereau

The perfume industry is a wealthy and profitable one, generating an ever-increasing turnover worldwide. However, as do all successful industries, it attracts numerous counterfeiters and tempts indelicate competitors to copy successful perfumes. Although perfumes are expensive and sensitive products whose development requires time and sizeable investment, they are, unfortunately, hard to protect against unauthorized copies.

The protection of the name of a perfume and of the shape of its bottle is not problematic. Indeed, they are eligible for trademark and copyright (or design patent) protection without any particular difficulty. On the contrary, the protection of the fragrances themselves is more questionable and raises a lot of uncertainties, since intellectual property laws worldwide do not contain any specific provisions for the protection of fragrances. Consequently, it is necessary to rely upon the general provisions of the usual intellectual property rights (patent, trademark, copyright) in order to determine whether fragrances may be protected as such, or whether they may only be protected through the general rules of know-how and unfair competition.

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