scent of resistance Patrick Suskind If our language is worthless to describe the world of smells (Perfume), how the right language description and qualification in essence, could he one hand, grasp a fragrance and secondly, to enable its protection?
We know that a perfume is a considerable amount of work, talent, know-how and investment. The birth of a perfume is the result of a clever mingling of art and industry. Creating a fragrance is also and above all a question of ownership: ownership by the creator, which is a matter of law, ownership by the consumer, which is the business of marketing and emotions. The law of intellectual property right ownership, it allows the ownership of an odor so created? A perfume is it a work of mind, an invention, a distinctive sign or just a discovery that was there by nature accessible to all and only waiting for its discoverer to be rewarded by posterity?
The issues and the legal consequences are significant only because ownership can foster innovation and creation by providing the inventor or creator to the livelihoods of its activity to engage in a recovery process. And the material, the position of French law is unstable, as often when the technique and art unite in the service of an industry.
A ruling of 25 January 2006 the Court of Appeal of Paris had accepted that a fragrance (ie Dior Dune) was likely to be a work of authorship protectable under the Code of intellectual property, if it met the requirements of the criterion of originality. The 1 st Civil Chamber of the Court of Cassation gave the lie to this interpretation in a decision dated 13 June 2006 (Cass. Civ. 1st, June 13, 2006, No. 1006, Nejla X v. Soc. Haarmann & Reimer), Court of Appeals in finding, quite suddenly, and in my opinion against the the times that " fragrance of a perfume, which comes from the simple implementation of expertise, does not create an expression that may benefit from protection of works of the spirit by copyright .
But copyright protects well creations of the mind, regardless of genre, form of expression, merit or purpose without an exhaustive list of works eligible for copyright or explicitly exclude those perceived by smell. The fragrance of a perfume could thus subject to be original, be considered a work of the mind in perfect harmony with Article L 112-1 of the Intellectual Property Code.
While several European courts had recognized that the creation of a perfume is an intellectual work protected by copyright (Judgement of the Court Dutch Supreme, June 16 2006, LJN AU8940, C04/372HR), developing a fragrance would be for the French supreme judge, nor a work of authorship or inventions, assuming a technical effect, but would proceed from the simple implementation know-how.
Will we be satisfied? The Court of Appeal of Aix-en-Provence, perhaps more sensitive to scents of Provence and Mediterranean, ruled intoxicating for an entire industry of Grasse, September 13, 2007 going directly against the decision of Cassation was one of only older. The case pitted (again) Lancôme society to a competitor, supplier of juice very close to its star perfume, Treasury. The Court thus concluded Provencal affirmatively that the creation of a perfume is protected by copyright and ultimately retain counterfeiting under similarities significantly exceed what is customary to see two original perfumes .
this Court and there is every reason to rejoice, has not failed to persuade the Court of Cassation in its corner. It is therefore for the latter to endorse protection of the fragrance of a perfume by the original law copyrights or to break again, against the zeitgeist. If the Supreme Court was again entrenched positions, it should be understood as a crying call the legislature: it is indeed appropriate that the legislature is addressing the issue, because if the Court invalidates the copyright protection of author, this part of the luxury goods industry will be greatly weakened. But if the Court approves the protection of copyright and grant the monopoly of exploitation rights to the creator, what about the consumer? It should be given a legal license to use, because by sharing its fragrance around him, an elegant actually would make a public performance requires permission under penalty of ... infringement action! That would make the perfume a private matter. Now do u woman without perfume has no future female (Coco Chanel). The Court of Cassation must therefore also take care to establish a new principle, I call implied statutory license.
© Xavier Cerf
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