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Copyright 2009 The Copyright Society of the U.S.A. All Rights Reserved.
Journal of the Copyright Society U.S.A.

ARTICLE: GENIUS IN A BOTTLE: PERFUME, COPYRIGHT, AND HUMAN PERCEPTION

Winter / Spring, 2009

Journal of the Copyright Society U.S.A.

56 J. Copyright Soc'y 427

Author

by CHARLES CRONIN *

Excerpt

INTRODUCTION

On February 14, 2007, the Cour d'appel in Paris affirmed a lower court's determination that several perfumes sold by Beauté Prestige International, under the name of designer Jean-Paul Gaultier, were protected by copyright. 1 This was not the first instance in which a French court had entertained the question whether copyright protection could extend to perfume. 2 The appellate court opinion was striking, however, in that it deliberately flouted the ruling of the highest French court, the Cour de cassation, of June 13, 2006, involving the fragrance manufacturer Haarman & Reimer, on the same issue. 3

In a laconic dismissal of the copyright claim of an erstwhile Haarman & Reimer employee against the company, the Cour de cassation ruled in 2006 that perfumes are not eligible for protection under French copyright law because they are a product of the application of purely technical knowledge and lack, therefore, a discernable association with the individual personalities of their creators. 4 In its startling Gaultier opinion of February 2007, the Cour d'appel noted the defendant's reliance upon the same argument and language used in the Cour de cassation's declination of copyright protection for fragrance in Haarman & Reimer. 5 The Cour d'appel went on, however, to discount this argument entirely, asserting that perfumes were copyrightable precisely because they could embody the imprint of their creators' personalities. 6

While the Haarman & Reimer and Gaultier cases were being litigated in France, courts in the Netherlands also were pondering the copy-rightability ...
 
 
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