The French Supreme Court has confirmed a 2002 decision of the Versailles Court of Appeal which held that a fragrance cannot be protected by copyright; the Supreme Court indeed held that:
“the fragrance of a perfume, which arises out of the mere implementation of know-how, does not constitute, according to the above-mentioned articles (i.e. article L.112-1 and L. 112-2 of the French IP Code), the creation of the form of expression capable of being protected by copyright as a work of the mind.”
Article L. 112-1 states that a protection is given to “the rights of authors in all work of the mind, whatever their kind, form of expression, merit or purpose.” Article L. 122-2 provides a non exhaustive list of what shall be considered as work of the mind within the meaning of the IP Code (books, lectures, dramatic works, choreographic works…), where fragrances do not expressly appear.
Considering that fragrances are merely the implementation of “know-how” - without giving further motivation - the Supreme Court held that fragrances shall not be deemed as a work of the mind and shall accordingly not be protected by copyright.
This decision is in line with previous case law which held that:
# fragrances result from their formula,
# formula being only the implementation of know-how,
# thus they are not deemed as a creation of “form” under the scope of the IP Code.
One could have expected that the Supreme Court decision - as emanating from the highest French jurisdiction - would have put a definitive end to the legal uncertainty surrounding the question of the protection of fragrances by copyright.
Indeed, from late 1990’s to early 2000’s, contrary decisions have been rendered in other First Instance court and court of appeal stating that:
# article 112-2 draws up a non exhaustive list which does not exclude works perceived by smell,
# if a form of expression is perceptible even if not concrete and stable, it falls under the general notion of a “work of the mind” according to the IP code definition
# and it is accordingly eligible for copyright protection.
Those courts - and notably the influential Paris Court of Appeal - are apparently not willing to follow the Supreme Court’s position since in recent cases, relying on the same reasoning, they decided to maintain the principle that a fragrance can be protected by copyright.
The question of the protection of the fragrances is accordingly not definitively settled; which means that it will inevitably be again referred to the arbitration of the Supreme Court. To be continued in the next issue.