La Revue Squire

Protection of scent under French Copyright Law


Rédigé par Fleur Allain le 31 Mai 2006

Court of Appeal of Paris 28 January 2006, Bellure v L'Oréal et al. - 15 February 2006, Bellure v Beauté Prestige International



The Court of Appeal of Paris recently handed down two judgments confirming that scent is protected under French Copyright Law. The claimants in this case, L'Oréal and Beauté Prestige International, both perfume distributors, brought an action for copyright infringement against the Bellure Company. Allegedly, Bellure initially imitated the packaging, bottles and brand names of famous scents but then branched out into copying the scents themselves.

The claimants said that their scents were being infringed by the defendant’s scent.

The defendant argued that a scent could not be protected under Copyright Law since Article L.112-2 of the French Intellectual Property Code only protects works that can be heard or viewed. The defendant claimed that a scent or taste cannot be described objectively and cannot therefore qualify for protection under French law. Moreover, the defendant argued that because a scent is a technical invention it cannot be protected by copyright even if it did have an aesthetic result.

The Court of Appeal of Paris, like the first instance judges, rejected all of the defendant’s arguments. It considered that Article L. 112-2 of the French Intellectual Property Code does not provide an exhaustive list of works that can be protected by copyright. It also considered that the ability of a work to be fixed is not a condition for protection under the law. The condition required is that the work is merely perceptible.

After examining the contents of the scents at issue, the Court thought that two points were particularly persuasive. First, it considered that there was a real “effort of creation” by the creator of the scent. Secondly, survey evidence indicated that a majority of women asked thought that the scents were similar. The Court therefore decided that Bellure had infringed the claimants’ copyrights.

Bellure Company was ordered to pay 1,380,000 euros in damages.

Though not entirely new, this is an important decision because it confirms that French copyright law may protect scents, flavours, and perhaps even the recipes of famous chefs. This copyright protection will be added to the body of Trademarks, Design and Unfair Competition Law which protects the overall design of the container of a product but not the contents of such a container.





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