Do copycat scents breach Intellectual Property rights?

Whether or not Intellectual property (IP) protection covers smell was the subject of a 2006 Court of Appeal case involving copycat scents in which the High Court handed down a judgment making it easier for trademark owners to prevent so-called ‘look-a-like’ or ‘smell-a-like’ products.

The case was filed by L’Oreal and other luxury perfume makers who objected to a smell-a-like business publishing a comparison table of their products and which luxury brands they resembled. The use of registered trademarks in the comparison lists of the defendants was deemed to have benefited financially from the reputation of L'Oreal and their defence was rejected when they found to infringe L'Oreal's trademark registrations under Section 10(1) of the Trademarks Act 1994.

Although the packaging of the smell-a-like was also similar the defendants did not use any of L'Oreal's brand names on the products themselves, nor marks which were confusingly similar and had only partly infringed their trademark registrations. The Court considered that this was unlikely to mislead the public so did not infringe the manufacturers’ trademark and no one consumer had been confused into thinking that the defendant's products were those of L'Oreal and as a result, their claims under Section 10(2) (b) failed.

However the court did find that the defendants had in part received 'the reward for the costs of promoting, maintaining and enhancing a particular trademark' and that the defendant’s products as a whole had taken unfair advantage of the reputation of L'Oreal's brands and that the use of the perfume makers’ trademarks for marketing purposes to identify which ‘own brands’ had a similar fragrance was a breach of the IP of the claimants. The smell-a-likes can continue to be sold but their manufacturers cannot say what fragrances their products are supposed to imitate.

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