In June the Court of Appeal in ‘s-Hertogenbosch upheld the decision of the District Court in Maastricht that a perfume can be protected by copyright. The case was about perfume manufacturer Lancome invoking copyright. Lancome was successful, but it is important to point out that the Court of Appeal in ‘s-Hertogenbosch is not granting protection on the smell itself but on the perfume that is in the bottle. In fact a smell is too volatile and not sufficiently concrete to be considered for copyright protection. However, “the substance which as a result of its composition gives out a particular smell and is made and used for that purpose” is sufficiently concrete because the ingredients are discernible and recordable. The smell as a trademark was rejected by the European Court of Justice.
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