Protecting a Perfume

The intellectual property of a perfume is hard to protect: The composition is usually a trade secret, but it isn’t that hard for a competitor to compose a compound that’s very close to an existing scent.

So, as with so many other goods and services, protection of the market for the product comes largely by protection of the trademark. That includes a registration of the trademark for the house (Chanel®) and the scent (No. 5®).

The power of a perfume trademark was recently expanded by a court in the Netherlands.

Here’s what happened: Bargello® created smell-alike scents for popular perfumes and gave each of their smell-alike scents a number. So far, Bargello was not infringing anyone’s rights.

Then Bargello create a list, like this, that allowed customers to find the smell-alike for their favorite perfumes:

  • 404    Little Black Dress by Avon
  • 114    London by Burberry
  • 280    Omnia by Bulgari
  • 705    Euphoria by Calvin Klein
  • 674    Chic by Carolina Herrera
  • 135    No. 5 by Chanel

That’s where the District Court of The Hague drew the line. The court held that this wasn’t permissible “comparative advertising.” Rather, this was using a protected trademark owned by a competitor to promote Bargello’s smell-alike products.

It’ll be interesting to see whether similar lawsuits are brought in other jurisdictions and how those courts decide.

What do you think? Should a company be allowed to use a competitor’s trademark like this? How do we balance the interest of consumers in knowing how goods compare to the interests of companies in maintaining the value of an asset they created?

 

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Rock on or Not So Much?

Gene Simmons of the rock band Kiss® has applied to register a hand gesture as a trademark for entertainment services. His application says he’s been using the hand gesture since 1974. November 14, 1974, to be exact. Here’s the drawing of the gesture.

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There are plenty of registrations for stylized versions of hand gestures, like these:

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But this is different. This is a hand gesture itself. Is that ok?

There’s nothing wrong with having a hand gesture as a trademark. Anything can function as a trademark if it identifies a particular source of goods or services. Carol Burnett is extremely well-known for pulling her earlobe at the end of a performance. I would definitely describe her iconic ear-pull as a trademark.

But what about Simmon’s hand gesture?

Imagine a picture of a rock singer, with all identifying features scrubbed out, but the hand gesture clearly visible. If I show that to people who listen to rock music, how many of them would say: “Oh, yeah, that’s Gene Simmons” and how many would say: “Not sure who that is, but he seems cool.”?

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In other words, is this something that Simmons does, or is it something rock stars do? The answer to that question is at the core of whether the hand gesture is a trademark.

If this hasn’t been trippy enough for you, what counts as infringement for hand gestures? Lots of rock stars use the devil’s horn gesture. Is that infringement? Can Gene Simmons make them stop?

Trademark law is soooooooo cool.

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