Law and Odor: Elusive Copyright and Other Intellectual Property Protections for Fragrances

Unconventional Copyright (Book), Forthcoming

14 Pages Posted: 16 Feb 2017  

Charles Patrick Desmond Cronin

USC Gould School of Law

Date Written: February 14, 2017

Abstract

Like the media and entertainment industries whose principal marketable “product” is information, the fragrance industry has become unusually vulnerable to new technologies, gas-chromatography-mass-spectrometry in particular, which enable legal appropriation of once-proprietary knowledge. Accordingly, the fragrance industry has recently pursued various forms of legal protection not previously sought, including copyright for its most valuable assets: fragrance formulas.

This discussion focuses particularly on the tenability of recent litigation in France and the Netherlands that has turned on the question whether fragrances may qualify as copyrightable works. The contrary opinions that various courts have expressed on this issue ultimately lead to the question whether the relatively limited ability of human olfaction, and specifically humans’ exiguous capacity to perceive the originality of scents, should determine whether copyright should be afforded works of fragrance created through human ingenuity and creativity.

The article concludes by considering whether the fragrance industry’s ongoing viability may depend upon enactment of sui generis intellectual property protections along the lines of those provided to other industries that have claimed danger of atrophy without such exceptional treatment. It suggests it does not and that, though frail, existing intellectual property protection is adequate for this industry.

Keywords: fragrance, copyright, trade secret, reverse engineering, trade dress

Suggested Citation

Cronin, Charles Patrick Desmond, Law and Odor: Elusive Copyright and Other Intellectual Property Protections for Fragrances (February 14, 2017). Unconventional Copyright (Book), Forthcoming. Available at SSRN: https://ssrn.com/abstract=2916957

Charles Patrick Desmond Cronin (Contact Author)

USC Gould School of Law ( email )

699 Exposition Boulevard
Los Angeles, CA 90089
United States

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