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L’Oreal and Fragrance Intellectual Property

Posted: October 16, 2007

Imitation is the sincerest form of flattery, but is it a violation of intellectual property law? When it comes to fine fragrances, it depends who you ask.

The nebulous definitions of fragrance intellectual property took some interesting turns last week when London’s Court of Appeal ruled that L’Oreal (Paris) had no grounds for stopping Scion International (Dubai, United Arab Emirates) from marketing its Creation Lamis “smell-alikes.” Saying that the imitations would unlikely be mistaken for the original L’Oreal scents (Noa, Tresor and Miracle), the Court concluded that no trademark violation had taken place.

The decision stands in stark contrast to last year’s Dutch Supreme Court ruling, which upheld a decision that declared that, as a work of art, Tresor was protected from imitations. That ruling, which came against Kecofa Cosmetics (Kerkrade, The Netherlands), was partially swayed by L’Oreal’s claim that the Tresor imitation contained more than 88% of the original’s characterizing fragrance materials. (At what levels, however, was never specified.) The designation of “art” bestows far greater protections than, say, a designation as a manufactured good. However, given that the definition of “artistic work” likely varies from jurisdiction to jurisdiction, the decision may not have wider implications. (Under US copyright law there would be no claim.)

Meanwhile, the London Court of Appeal will possibly kick a number of remaining issues (raised by L’Oreal’s legal team) to the European Court of Justice for sorting out, including whether businesses can use competitors’ trademarks in their promotional literature and whether a trademark violation can occur between products that cannot be reasonably confused.