Like a rose, a perfume by any other name would smell as sweet. But actually selling a cheap knockoff under another name is a copyright violation, a Dutch court says.
The decision by the appeals court in Den Bosch granting France-based Lancome a copyright on its "Tresor" perfume could reverberate throughout the cosmetics industry and beyond.
The Dutch maker of cheap perfumes that lost the case, Kecofa BV, vowed on Thursday to appeal the decision to the Dutch Supreme Court and European courts.
PHOTO: AP
Lancome's actions are "the equivalent of someone introducing a fancy strawberry jam and then trying to prevent anybody else from selling a cheaper version," Kecofa spokesman Leon Meels said.
Until now, perfume makers have fought cheaper copycats by keeping their formulas secret or occasionally by patenting their chemical composition as an "invention."
Courts worldwide have held that the odor itself is something that belongs to nature -- not to any person or company -- and is not copyrightable.
But in a decision June 21, the court said Tresor was a distinct combination of ingredients "not only measurable by the senses but also, in the court's judgment, concrete and stable enough to be considered an 'authored work' as intended in copyright law."
In other words, the perfume is more like a painting than a product.
Lawyers for Lancome, which won the right to block imitators from marketing cheap knockoff versions in the Netherlands, called the ruling "revolutionary."
Some competitors and experts dismissed it as a mistake that could have grave consequences in an industry that racked up US$208 million in retail sales in the Netherlands last year, according to the Dutch cosmetics industry group NCV.
Charles Gielen of the law firm NautaDutilh, which represents Lancome, said it was right that perfume should be considered a creative work, despite relying on commonly known ingredients.
"Paintings also are made of a mixture of colors, which are known components, and poems are made up of normal words," he said. "It's the combination that's artistic."
The court ruled that Kecofa, which makes a perfume called "Female Treasure," had infringed Lancome's copyright and must hand over all profits it has made on the perfume since 1995.
Female Treasure is sold at Dutch shops and markets for around US$5 to US$7 for a 100mm bottle -- at a tenth of the cost of Tresor.
Thomas Field Jr, a professor at Franklin Pierce Law Center in New Hampshire and a former chemist, said the Dutch ruling could be "bad, bad, bad, from a public policy standpoint."
"Where does it stop? Will new wines, or blends of spices and other condiments be copyrightable? If the law of the case stands, lawyers will be mining its golden ambiguity for many years," he said.
A patent would be a more appropriate way for perfume makers to protect their product, he said.
Patents grant exclusive manufacturing rights for 20 years, rather than the 100 years or more given by a copyright.
The Dutch court relied heavily on the testimony of experts hired by Lancome whose chemical analysis showed that Female Treasure contained 24 out of 26 chemical elements in common with Tresor -- swapping only musk for a cheaper substitute.
Kecofa had 70 employees and sales of US$12.3 million in 2002. Lancome is owned by France's L'Oreal, with 50,000 employees and sales of more than US$17.2 billion last year.
Meels said Lancome's chemical analysis was misleading, since most perfumes contain similar
ingredients.
"We should have presented our own experts, but we didn't have a lot of time to prepare and to be honest, we underestimated how seriously the court would take their arguments," Meels said.
Meels said that the company's profit margins are so small that the cost of paying an extra accountant to figure out its past earnings from Female Treasure would likely be greater than the actual earnings themselves.
The court also ruled that Kecofa should also pay around court fees and other costs.
Gielen said Lancome will now attempt to enforce copyrights on its other fragrances and against other knockoffs.
EIGHT-YEAR WINDOW: Avril Haines said that Beijing is closely watching the Russian invasion of Ukraine, although Moscow’s actions have not sped up Beijing’s timeline The threat posed by China to Taiwan until 2030 is “critical,” US Director of National Intelligence Avril Haines said on Tuesday while testifying on worldwide threats at a hearing of the US Senate Committee on Armed Services. “I think it’s fair to say that it’s critical, or acute,” Haines said when asked by US Senator Josh Hawley if she viewed the threat facing Taiwan to be acute from now until 2030. “It’s our view that they [China] are working hard to effectively put themselves into a position in which their military is capable of taking Taiwan over our intervention,” she said, without
NO CONSENSUS YET: Local governments and the CECC have agreed to change the ‘3+4’ self-isolation policy, but are still mulling what to replace it with The Central Epidemic Command Center (CECC) and local governments have agreed to ease restrictions on close contacts of COVID-19 cases, although the details are still being discussed, the center said yesterday. The discussions follow Premier Su Tseng-chang (蘇貞昌) on Saturday approving a proposal to shorten the “3+4” policy — three days of home isolation followed by four days of self-disease prevention — for close contacts who have received booster doses. “We did not reach a consensus on how to revise the current restrictions, but we all agreed that the administrative burden must be reduced and the intensity of restrictions must be eased,
OPPOSING CHINESE ‘HOSTILITY’: The bill orders the state secretary to create a plan to regain observer status for Taiwan, saying Taipei is a model contributor to world health US President Joe Biden on Friday signed a bill into law to help Taiwan regain observer status at the World Health Assembly (WHA), demonstrating Washington’s support for Taiwan’s international participation. Friday was the deadline for Biden to sign the bill (S.812), which directs “the Secretary of State to develop a strategy to regain observer status for Taiwan in the World Health Organization (WHO), and for other purposes.” The 75th WHA, the decisionmaking body of the WHO, is scheduled to meet in Geneva, Switzerland, from Sunday next week to May 28. The bill, introduced by US Senator Bob Menendez, chairman of the US Senate
‘DAMOCLES SWORD’: An Italian missionary said the arrest of cardinal Zen is a blow for the church in Hong Kong, China and the world, signaling great danger ahead China yesterday defended the arrest of a 90-year-old Catholic cardinal under Hong Kong’s National Security Law, a move that triggered international outrage and deepened concerns over Beijing’s crackdown on freedoms in the territory. Retired cardinal Joseph Zen (陳日君), one of the most senior Catholic clerics in Asia, was among a group of veteran democracy advocates arrested on Wednesday for “colluding with foreign forces.” Pop singer Denise Ho (何韻詩), veteran barrister Margaret Ng (吳靄儀) and cultural studies academic Hui Po-keung (許寶強) were also arrested, the latter as he attempted to fly to Europe to take up an academic post. Cyd Ho (何秀蘭), a democracy