In 1709, Giovanni Maria Farina was an alien: an Italian in Germany. This gentleman was also a homesick perfumer. When he composed a fragrance with notes of bergamot, lemon, vetiver, and jasmine, he wrote that the scent “reminded him of Italian spring mornings,” yet he named the creation after his adopted German city: Cologne. Believe it or not, that is how the world’s first eau de cologne was born, in an almost poetic attempt to capture nostalgia in a bottle.
Today these are common notes, but Mr. Farina was revolutionary for his time. He was also likely unbothered by copies; in that era, the olfactory industry had not yet caught today’s frenzy, but consisted of family enterprises that quietly guarded their production secrets. Today, most perfumes are produced by massive conglomerates, and perfumers lease their noses, and occasionally their formulas, to various houses.
Consumers today can choose between original scents, those that resemble them, and those that pretend to be them. How do all these nearly identical scents coexist? Doesn’t this coexistence create confusion, and doesn’t that confusion worry rightsholders? Well, buyers of each category are driven by very different motivations, and this generous industry offers something for everyone. While we cannot pinpoint these motives with certainty, we can speculate through the lens of the law.
To understand this landscape, we must first distinguish the original from its market derivatives:
- Counterfeits: This is the lowest form of intellectual theft. It occurs when the exact bottle and trademark of a perfume are reproduced, paying little attention to the scent itself. Prices are lower than the original, as is the quality. The buyer of a counterfeit is not interested in olfactory complexity; they seek to project the impression of owning the original. Thus, these scents are rarely pleasant, as the emphasis rests entirely on image. Counterfeiting is unequivocally illegal and criminally actionable as such.
- Inspired-by Fragrances: These creations do not replicate the exact scent or bottle, but convey a certain feeling similar to an existing perfume. Here too, prices are lower, and buyers choose them because they enjoy the aura or mood of a particular fragrance. These do not claim to be original, they do not reproduce its trademark, and consumers recognize the resemblance on their own. Thus, this approach generally stays within the boundaries of the law. However, this group treads dangerous ground if it markets scents using phrases like “similar to €450Fragrance for half the price.”
- Duplicates (or Clones): Enter Monsieur Dupe. He lives on the paper strip handed to you as you walk past a shop filled with identical bottles. You smell it and feel instant déjà-vu, while your friend insists “it’s identical to €450Fragrance, and even lasts longer“. Monsieur Dupe also lives within designer houses that, once a particular accord gains mass appeal, reproduce those notes day after day until you begin to feel everyone around you is trailing the exact same sillage. This is his infamous artifice: Monsieur Dupe operates with the full permission of the law. But how?
Legal Obstacles in Protecting Scent
The fragrance industry operates on a paradox: it is a multi-billion-dollar empire built on the allure of the invisible, yet it receives almost zero legal protection for the scent itself.
Enthusiasts and perfumers consider fragrances works of art. Yet in the cold eyes of intellectual property law, a scent is merely a volatile, unstable mixture of chemical substances that cannot be objectively defined. But isn’t the author’s own intellectual creation fixed in a tangible form as long as the liquid remains inside the bottle?
Several legal battles have attempted to bring fragrance under the umbrella of copyright law. The French Cour de Cassation (Bsiri-Barbir v. Haarmann & Reimer) ruled in June 2006 that the creation of a perfume is the result of technical know-how (savoir-faire), not an intellectual expression eligible for protection as a literary or artistic Work. The Dutch Supreme Court challenged this logic that same year (Lancôme v. Kecofa), daring to separate the chemical liquid from the olfactory experience and granting copyright protection to the fragrance.
A series of contradictory decisions followed until 2018, when the Court of Justice of the European Union (CJEU) set a strict standard in Levola Hengelo: for a creation to be considered a “copyrighted work,” it must be identifiable with sufficient precision and objectivity. Human olfactory sense is influenced by time, skin pH, ambient temperature, and personal memory and offers neither precision nor objectivity. Scent evaporates by the minute, whereas the law demands clearly defined boundaries. Thus, the possibility of protecting scent under copyright evaporated entirely.
Faced with closed doors at copyright offices, scent was forced to seek refuge elsewhere, such as with Trade Secrets. A perfume’s formula is locked through NDAs with essence manufacturers like Givaudan or Firmenich. But trade secrets only protect against internal betrayal, not external reverse-engineering. Today, Gas Chromatography-Mass Spectrometry (GC-MS) technology allows the deconstruction of a formula within minutes. Monsieur Dupe does not need to steal a mark. He deconstructs the olfactory pyramid and replicates it at a fraction of the cost without committing any legal infraction.
Scent has also sought shelter under Chemical Patents, patenting unique synthetic molecules created in labs (captives) in those rare instances where they manage to prove novelty, industrial applicability, and an inventive step. However, when the patent expires after 20 years, exclusivity evaporates too. Furthermore, ingredients shift frequently due to regulatory constraints, while reformulations using known components rarely meet the criteria for patentability, rendering this route largely unfeasible for protecting the liquid.
Scent has also sought protection as an Olfactory Trademark, only to collide with the landmark Sieckmann ruling (C-273/00). When Ralf Sieckmann attempted to register a scent by submitting its chemical formula, a verbal description, and a sample, the CJEU established that a non-visual mark must be clear, precise, self-contained, and objective (among other cumulative criteria). The inherent inability of scents to fulfill these criteria made their registration as trademarks virtually impossible.
What Is Protected, Then?
Since the law guarantees no protection for what you can smell, the fragrance industry has shifted its legal defense to what you can see: the bottle and the packaging.
The safest refuge for perfume houses remains registered protection: trademarks for the name and logo; 3D trademarks and industrial designs for the bottle contour; trade dress for packaging that embeds itself in consumer memory; and copyright primarily for the graphic artwork on the outer box. In specific instances where a dupe crosses the line of mere inspiration, the final line of defense remains unfair competition law. Yet this right does not prohibit replicating the scent; it comes to help when misleading tactics damage the original brand while marketing for the duplicate.
Designer vs. Niche
While this visual shell is sufficient for some, it exposes a deep structural divide in a landscape where the law refuses to protect scent. Here, it is worth distinguishing between two worlds: mass-market commercial designer houses and niche perfume houses. The latter produce fragrances exclusively.
For designer houses, perfume is an extension of the brand. Their scents are born not from unprompted inspiration, but from corporate briefs designed to yield commercial hits at minimal production costs. From an IP perspective, these houses are fully protected because their primary asset is not the formula, but the registered trademark, the bottle design, and the celebrity ambassador representing it.
For niche houses, on the other hand, liquid remains the main character. Production occurs in limited batches, featuring higher concentrations of essential oils, rare natural ingredients, and polarizing olfactory compositions that challenge mainstream taste. These houses collaborate either with independent noses or specialized manufacturers. For a niche house, fragrance is not an accessory to a brand; it is the work itself.
From an IP perspective, niche houses are the most vulnerable players in the market. Their reliance on olfactory identity leaves their business dependent on an asset the law refuses to protect. A niche house can invest years developing a unique accord, only to watch it deconstructed within weeks. Anyone can sue over a copied trademark, but when the infamous Monsieur Dupe copies the scent itself, niche houses are left with nothing to rely on except the loyalty of a community that values the art over the packaging.
There is a quiet irony in all this. By refusing to protect scent, the law unintentionally protects its very essence: an experience that cannot be locked in a register, but can only live in memory, before it evaporates.
Bibliography & References:
- “Chemical romance: How did chemists become the greatest force in fragrance?”, Erin McAvoy, December 10, 2010
- “Lost and Found: Intellectual Property of the Fragrance Industry; From Trade Secret to Trade Dress”, Charles Cronin, February 2, 2016
- “Trade Dress at a Glance: Protecting the Look and Feel of a Product”, W. Drew Kastner, July 20, 2023
- “Perfume brands fighting a ‘lost cause’ against cheap dupes, say lawyers”, Donna Ferguson, April 12, 2025