Intellectual Property, and Fragrances: Does Protection Exist?
By: Robert Segall
The fragrance industry is constantly changing and has made significant advances since it began in the South of France during the 19th century. Technological advances have created a fragrance industry that today is more vulnerable than ever to appropriation of formulas and other information that is intended to remain secretive. Knowledge, particularly of specific formulas or manufacturing processes for fragrances are considered the most valuable assets in the industry because companies tend to focus their investments in these areas. Unfortunately, reverse engineering technology has made these formulas relatively easy for competitors to obtain. Thus, in recent years, the fragrance industry is gaining momentum in its pursuit for new forms of legal protection for its information assets. Although IP protection is limited for fragrances, at Amazon Sellers Lawyer we see complaints by brand owners against Amazon Sellers all the time.
Today, there are a handful of fragrance and flavor companies which develop and manufacture almost all of the fragrances sold under the names of luxury brands, fashion designers, celebrities, etc. These fragrances ultimately end up in everyday products like candles, colognes and perfumes and are packaged in distinctive bottles. While it seems that most of these fragrances end up in glamorous or designer focused products, the reality is that fragrances are more typically found in detergents, cleaning supplies or air fresheners.
Although, many of the fragrance based products undoubtedly are useful, the fragrance industry typically does not rely on patent law for protection. This is because the fragrances produced are highly valuable. Thus, their market value goes well beyond the 20-year protection provided by a patent before patent law would require the fragrance formula to be revealed. Popular fragrances like Chanel’s No. 5 have enjoyed popularity and success for decades.
There are a few manufacturers who have successfully obtained utility patents for fragrances, but these manufacturers were able to make claims of therapeutic efficacy for their scents. Patent law is intended to protect new, innovative, and useful products, but patents do not provide protection for the thousands of original fragrances which are ultimately used in a variety of consumer products. Thus, patent law provides insufficient protection to the fragrance industry.
Music is something that almost everyone seems to think of when considering Copyright protection. Like a musician writing a new song, a skilled perfume creator will draw from an array of scented essences and create a combination in an effort to create an original fragrance. “The intensity of a particular component of a fragrance is referred to as its “volume”, and the perfumer’s improvisations are tested using paper strips known as “touches” or piano keys. Not surprisingly, some of the results of these combinations of scents have been named with musical terms like Arpège and Sonata.”
Musical compositions, once recorded as sound or written as sheet music, contain original forms of expression created by the musician and are thus eligible for copyright protection. It would seem logical then, that new fragrances, should also be eligible for copyright protection. However, this is not the case. The aim of any fragrance creator is to evoke emotional responses through their interaction with the consumer’s sense of smell. This is true whether the fragrance is ultimately to be used in a designer perfume, or in a laundry detergent.
Copyright law has expanded dramatically in the 21st century, to the point where cartoon characters and action figures are copyrightable subject matter, but it still does not seem to have caught up to fragrances. Thus, copyright law also fails to adequately protect the fragrance industry.
Trademark / Scent mark:
Trademarks are typically symbols or marks that are afforded protection because they are commonly associated with certain brands as indicators of their source or quality. Like trademarks, scents can act as identifiers for certain products as well. Certain consumers can unmistakably distinguish between their favorite designer perfumes. However, scents are difficult to trademark because trademark protection requires some sort of a nonfunctional and distinctive aspect. This requirement is difficult to satisfy because fragrance based products are typically always functional. Candles, air fresheners, perfumes and colognes all function to emit pleasant scents and evoke sensational reactions in those who smell them. As such, trademark law also fails to adequately protect fragrances.
In the United States there is a high bar to overcome for scent mark protection. The applicant must be able to show: (1) non-functionality; and (2) distinctiveness. A product feature is functional if it is “essential to the use or purpose of the article or if it affects the cost or quality of the article.” Qualitex Co. v. Jacobson Products Co., 514 U.S. 159, 165 (1995) (quoting Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 850 n.10 (1982)). The purpose of the functionality requirement is to prevent a trademark owner from controlling a useful product feature. If an applicant can somehow show that their scent acts as a product’s source identifier and performs no function, they may be able to obtain trademark protection. However, because almost every fragrance product performs the core function of emitting a scent, this requirement is almost never met.
What does this mean for Amazon Sellers?
At Amazon Sellers Lawyer, we have several clients who make a living selling fragrance based products on the platform. While these fragrances or scents themselves are almost never afforded intellectual property protections, this does not mean that sellers will be immune from complaints from brand owners. We have been successful helping our clients remove baseless trademark complaints, but some brands are more difficult to deal with than others. Intellectual property law is evolving today more than ever, and fragrance protection has become a highly debated topic. As the law is bound to change and is becoming increasingly more complex than it already stands, it is more important than ever to be educated. Should you receive an Amazon Seller Suspension due to a fragrance based product complaint, it is essential to know and use the law when drafting your plan of action. Amazon Sellers Lawyer is here to help.