By Carlotta Cacciamani
Is perfume a work of art? As such, can it be protected by copyright?
According to European law, the answer to both questions is no. Are you surprised? Judgments No. 328 of March 4, 2020, and No. 567 of April 2, 2020, issued by the Court of Justice of the European Union, state that perfumes are not protected by copyright because the creativity in perfumes does not reach the level necessary to be considered “art.” Legal protection only applies to external elements such as the packaging, bottle, perfume name or advertising campaigns. Since perfumes are considered chemicals, they are not recognised as creative works.
About copyright a perfume: patents, a possible but flawed solution
So, is there no way to protect a fragrance? Actually, there is a way to patent a composition, but this solution has drawbacks. The copyright in question would cover the chemical formula and would last for a maximum of 20 years. To obtain the patent, the formula must be described in detail and then published, exposing the company to the risk of imitation. Brands value trade secret protection and focus on safeguarding external elements such as packaging, bottle design and the name of the perfume. In the industry, it is often said that the “container protects the content”!
Challenges in enforcing rights, how to empower the act of copyright a perfume
When can we start discussing the issue of copying between big brands? This is where the problems arise. Companies can take legal action for patent, trademark and registered design infringement or unfair competition under Article 2598 of the Civil Code. However, these actions are often complicated, costly, and have uncertain outcomes. One obstacle is the subjective nature of the perception of how people perceive a fragrance. While it’s always possible to get an expert’s opinion, the expert can never provide an entirely objective technical assessment.
The rise of perfume ‘duplicates’ threatens perfume copyrights
This statute exposes the perfume world to a rise in the availability of “dupes” –copies of well-known perfumes sold at significantly lower prices. On TikTok, the hashtag #perfumedupes has over 114 million views, and this trend is gaining traction due to viral videos on Instagram. Many consumers are drawn to the chance to buy their favourite perfume at a fraction of the original price.
Custom fragrance experiences, choose yours
Some of these posts feature Zara, which, as influencers explain, has crafted perfumes that mimic more popular ones by altering their names, such as Rose for J’Adore and Aromatic Future for Sauvage by Dior. In Milan, boutiques like Lluvia Perfume Bar and La Profumoteca, on the other hand, allow people to create custom fragrances mirroring those of major brands. Beyond the cost-effectiveness, this is a truly unique experience for consumers, who can shape their favourite scent, making it more personal and closer to their tastes.
However, it must be emphasized that a perfume copy can never have the same quality of ingredients, nor the durability and olfactory complexity of the originals. Leading perfume companies invest heavily in their products, always looking for new eco-responsible technical solutions and selecting the best raw material suppliers.
Moreover, purchasing a copy exposes the consumer to the risk of encountering substances that do not meet the stringent European health standards, which the major brands strictly adhere to.
In response to the growing demand for safe, high-quality creations and repeated calls to give perfume a more valorizing status there is noticeable movement and potential for evolution.Some experts and legislators are proposing to recognize the “nose” (the specialist perfume creator) as an artist, thus’ distinguishing his creative work or to use in unfair competition lawsuits the “mechanical nose.” The legislative process is slow and complex, requiring broad consensus among various industry stakeholders. Elevating perfume to the stature of an artistic work would not only enhance the value of the perfume industry but also help consumers appreciate the craftsmanship and creativity behind fragrance .
