The Cour de cassation (French Supreme Court) decided on 13 June 2006 that a scent is not a creation but rather the result of know-how that cannot be protected under French Copyright Law. In this case, a dismissed employee claimed copyright over a scent that she had created whilst working for a company. The decision of the Cour de cassation overtly calls into question the position of the Paris Court of Appeal on 28 January 2006, which we referred to in our previous review in May 2006. In Bellure v L’Oreal the Judges clearly held for the first time that a scent may be considered as a creation and thus be protected by French Copyright Law. They rejected all of the Defendant’s arguments and stated that the list of protected works under article L.112-2 of the French Intellectual Property Code is not exhaustive. The Court of Appeal further ruled that whether a work may be fixed is not a prerequisite for its protection under current law; all that is required for a work to be protected is that it be perceptible.
This decision was welcomed by the cosmetics industry as another means to protect their products. Nevertheless, some critics argued that Copyright Law did not particularly lend itself to protecting scents.
The Cour de cassation has now definitively put an end to the protection of scents under Copyright Law. This judgment relies on the grounds that a fragrance results from knowledge and therefore does not constitute a creation of an “expression form” protected by copyright. This decision may be explained by the specificity of scent, which is subjective and calls upon an olfactory feeling, not a material element resulting from a “work of mind” protected by French copyright. The Cour de cassation has applied copyright principles strictly: even if knowledge may contribute to the creation of a work, copyright only protects the result of the know-how, provided that it is a material form that is available to senses. Despite the fact that the protection of scents under Copyright Law would offer a claim against its infringement that would be more efficient than the other remedies currently available (under trademarks, design and unfair competition law), one only has to consider the black-letter law to notice that something is wrong. As Professor Pollaud-Dulliand points out, many provisions of French Copyright Law, such as the author’s moral right, are hardly applicable to scent. This point makes it easier to understand the position held by the Cour de cassation.