Smells Like a Lawsuit


French courts have issued contradictory rulings on the question of whether perfume is a legally protected "work of the mind." Although one court denied a former Dior "nose" royalties for a perfume she helped create, another has ordered Bellure to pay L'Oreal $2 million in damages for copies of the latter company's scents and to destroy its stock of "counterfeit" perfume. The U.S. market, by contrast, abounds with knockoffs of popular scents, whose original producers have to rely on trade secrets and brand cachet rather than lawsuits to fend off smell-alike competitors. I've never been a big fan of perfume, but I suppose a memorable, complex scent can be viewed as a work of art, in the same sense that great dishes by fine chefs are works of art. But the latter too are legally unprotected (even in France, as far as I know). Any restaurant can try to replicate a competitor's signature dish without fear of a lawsuit, and I'm not sure why perfume should be treated differently. Then again, I'm not sure why music, movies, or writing merit special protection, unless it's based simply on a utilitarian calculation of which intellectual property rules will maximize creativity–a calculation that judges and legislators may not be well positioned to perform.