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?