Perfume: The Only Thing Fashion Sells That Nobody Owns 

Perfume is where the money is. It is also the one luxury product whose actual contents anybody is free to copy, and the law has been remarkably candid about why. 

Somewhere in a laboratory that does not have a boutique, a machine is separating a bottle of something expensive into its constituent parts. Gas chromatography, mass spectrometry, a printout. Within a few days, a manufacturer will have a workable approximation of a fragrance that took a house two years and a great deal of money to develop, and will sell it at a tenth of the price under a different name.

None of this is illegal. That is the part worth pausing on. Not a grey area, not an enforcement gap, not a jurisdiction with lax standards. In most of Europe,e the smell itself is simply not the kind of thing the law recognises as property, and the courts have said so repeatedly, in language that ought to trouble anyone in the business of selling it.

Which leaves the industry in an unusual position. Fragrance and beauty are where a great many fashion houses actually make their money, and fragrance is the only significant product they sell whose contents anyone may lawfully reproduce.

What the law declines to protect

The French position is the one that matters most, given where the industry lives, and it is unambiguous.

In 2006, in Bsiri-Barbir, the Cour de cassation held that the fragrance of a perfume arises from the mere implementation of know-how and does not constitute the creation of a form of expression capable of protection as a work of the mind. The court returned to the question in December 2013, in a case concerning a Lancôme perfume, and held again that copyright protects creations in a tangible form only insofar as that form can be identified with sufficient precision to permit its communication, and that a fragrance is not such a form.

Read the reasoning rather than the outcome, because the reasoning is the insult. The court is not saying that perfume is unimportant. It is saying that perfumery is a technical craft rather than authorship, an application of skill to chemicals that already exist, and therefore not an expression of anybody’s mind.

An entire profession, told by the highest court in its own country that what it does is not creative work.

The Court of Justice of the European Union arrived at a compatible position from a different direction in 2018, when it declined to extend copyright to the taste of a cheese on the basis that taste cannot be identified with sufficient precision and objectivity. Sensory experience, in European law, keeps failing the same test. If it cannot be written down in a way that another person can reliably reconstruct, it is not a work.

The exception, and it is a good one.

There is one significant dissent, and House Rules is largely a column about who gets to be the exception.

In Lancôme v Kecofa, decided in 2006, the Dutch Supreme Court took the opposite view. Kecofa was selling a fragrance called Female Treasure at roughly a tenth of the price of Lancôme’s Trésor, using twenty-four of the same twenty-six ingredients. Lancôme had already tried and failed on trademark grounds, since no consumer was going to confuse the two names.

The Dutch court made a distinction the French courts refused to make. It separated the fragrance from the liquid that produces it, in the way one separates the content of a book from the paper it is printed on, and held that the scented liquid was concrete, stable and objectively identifiable enough to be a work. Trésor had originality, Lancôme could document the creative process that produced it, and Kecofa had reproduced it.

Two European supreme courts, the same year, looking at nearly identical questions, arriving at opposite answers. The Dutch decision remains an outlier. It also remains the only serious judicial acknowledgement that a perfumer might be an author.

What is actually being sold

If the smell cannot be owned, the obvious question is what a house is protecting when it protects a fragrance.

The answer is everything except the thing in the bottle. The name is a trademark. The bottle shape can be registered as a three-dimensional mark, which is why the Chanel No. 5 flacon is legally more defensible than its contents. The typography, the campaign, the photography, the film, the counter, the packaging, all protected, all owned, all vigorously enforced.

The formula itself survives only as a trade secret, which is a protection that lasts exactly as long as nobody works it out. Since working it out is a laboratory procedure available to any competitor with modest equipment, this is a form of ownership with a short and entirely mechanical shelf life.

So a dupe brand operates within the law by observing a single rule. Copy the smell, never the name. Reference the original in comparative language, keep the bottle visibly different, and the entire proposition is lawful. The whole dupe economy, which now occupies shelf space in mainstream retail rather than hiding in market stalls, exists in the space European courts deliberately left open.

Why this makes fragrance the ideal licensing product

Now the part that connects to the balance sheet, and it inverts what you would expect.

You might assume that a product whose contents cannot be protected would be a weak asset. In practice it is the opposite, and the reason is instructive. Because the substance carries no protectable value, one hundred percent of the defensible value sits in the name. And a name is the single easiest asset in the world to license.

This is why beauty and fragrance divisions are so frequently operated by somebody else entirely. A house grants a decades-long licence to a specialist, collects a royalty on every bottle, and never touches a production line. The arrangement works precisely because there is nothing to protect except the label, and the label is what the house was renting out anyway.

Look at the logic from the licensee’s side, and it is equally clean. They are not buying a formula, which they could approximate in a fortnight. They are buying permission to put four letters on a bottle, and those four letters are worth the entire difference between forty euros and one hundred and forty.

The unprotectability is not a weakness in the business model. It is the business model.

The uncomfortable conclusion

Fashion has spent thirty years building an increasingly sophisticated apparatus for protecting things: the monogram, the shape of a heel, a particular red, a quilted pattern, the silhouette of a bag. Enormous legal effort, considerable expense, genuine results.

And the most profitable category in the industry has been running all along on a product where none of that applies, and doing better than everything else.

Which suggests that the protection was never doing the work anyone thought it was. If a house can sell a liquid that a competitor may lawfully replicate, and still charge a multiple of the replica’s price to millions of people who know perfectly well that the dupe exists, then what is being purchased is not the contents and never was.

The French court, in refusing to recognise the dignity of authorship in perfume, may have been wrong about the perfumer and entirely right about the market. What it identifies, without meaning to, is that the value in a bottle of fragrance is located somewhere the law cannot reach, because it is located in the buyer.

You cannot copyright a smell. You do not need to. Nobody was ever buying the smell.

Sources:

Kluwer Copyright Blog and Lexology on the Cour de cassation decisions of 2006 and December 2013; WIPO Magazine and The Cybergarden on Lancôme v Kecofa; IP Intersects on smell-alikes and the current state of fragrance copyright; the Court of Justice of the European Union in Levola Hengelo (2018).