LawFont.com

Today’s funny moment is from The Australian, which is carrying a story that French cosmetic company L’Oreal has won a copyright suit against a Dutch company for copying a perfume. The story appears to have originated in The Times, but does not as yet appear to have been widely syndicated. The bizarre thing, of course, is how such a claim could be brought in copyright.

The original articles don’t elaborate much, stating only that the fragrance “should be copyrighted — in effect as a work of art”. It sounds therefore as if the claim is based on a fragrance being an “artistic work” for the purposes of copyright legislation. (The articles also confusingly state: “Such manufactured products are usually covered by trademark and patent laws, but Female Treasure was not an exact copy of the L’Oréal perfume.” As expressed, this is a non-sequitur; one infringes by copying the claims of a patent, not necessarily by identicality of the resulting product. Even then, there is a “doctrine of equivalents” for things that are “pith and marrow” similar. Trade mark infringement likewise is concerned with copying of the trade mark, not the underlying product. Hazarding a guess, more likely reasons would be that the Dutch company did not try to dress up its product as one from L’Oreal, and the fragrance was not patented; and almost certainly was not protectable as a trade secret).

The articles then state that “The Dutch Supreme Court agreed with a lower court that Kecofa [the Dutch firm] had breached L’Oréal’s copyright” and that ” it will now have to hand over to the French company all profits from Female Treasure — expected to be tens of millions of pounds”.

An article in Cosmetic Design Europe states that laboratory analysis concluded that 23 of the 26 principal chemicals in the fragrance formulation were the same.

That article also seems to confirm that the “fragrance as a work of art” argument was run, stating:

According to a report in the London-based Times newspaper, L’Oreal won the court case because it successfully argued that its Tresor fragrance should, in effect, be copyrighted as a work of art.

In Europe Tresor is already copyrighted under terms that exist for all manufactured goods, but as Female Treasure is not an exact reproduction, L’Oreal was unable to take Kecofa to court on this basis.

Instead, the L’Oreal law team chose to give the Tresor perfume a status as a work of art, in order to take advantage of more favourable laws governing this area.

L’Oreal’s gamble paid off for the company, giving it a landmark victory that might determine future cases of counterfeiting.

The article is correct that such a result would be far-reaching, but that is precisely because it is so at odds with the accepted meaning of “artistic work”, at least as understood in Australia.

Here, section 32 provides that copyright subsists in an “artistic work” in terms which are at odds with protection of mass produced perfume – it talks about the “author” of the work, the time and place the work “was published”,

Section 10(1) defines an artistic work as:

“artistic work” means:

(a) a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not;

(b) a building or a model of a building, whether the building or model is of artistic quality or not; or

(c) a work of artistic craftsmanship whether or not mentioned in paragraph (a) or (b);

but does not include a circuit layout within the meaning of the Circuit Layouts Act 1989 .

The only possible basis for protection would be as a work of artistic craftsmanship — but that seems a huge stretch. That term is not defined in the Australian Act, nor in the UK Copyright Act 1911 in which it was first introduced. The general connotation of the term in the decided cases derives heavily from the notion of “craftsmanship”, in the sense of an artisan — thus it covers pottery, jewellery, metalworking, etc. It would seem a long way from vats of chemicals brewed up to precise formulae, most likely in a fully automated context.

Since national laws are meant to be harmonised, and to pick up uniformly the various international treaty law on IP, it would be strange for the Dutch laws to allow something apparently so different. Is there something different there?