‘Scent-sitive’ Business: Protecting Fragrance Innovations in India

Written by Gurkaran Singh & Tejaswini Nair, the authors are law students, pursuing BA.LLB from Symbiosis Law School, Pune

INTRODUCTION

The global perfume and fragrance market is experiencing robust growth, set to reach USD 77.52 billion by 2032 from USD 50.45 billion in 2024, driven by fierce competition and innovation. However, the absence of clear intellectual property (IP) rules poses a significant challenge, leaving fragrance innovations vulnerable to exploitation and imitation. 

In India, where the industry contributes 500 million to the global market, explicit legislation for scent protection is lacking, sparking debates on how best to protect fragrances under existing IP laws. This article assesses IP options such as patents, trademarks, trade secrets, and copyright for fragrance protection, highlighting their strengths and weaknesses. It also calls for legal reforms in India to safeguard fragrance creators in an evolving industry.

PATENTS

Various fragrance brands seek protection for their scents through patents. Patents, which are granted to inventions satisfying three key conditions—novelty, usefulness, and non-obviousness—traditionally protect mechanical inventions meeting these criteria. However, when it comes to fragrances, the situation is nuanced. While patents can safeguard the ingredients and unique formulations that constitute a fragrance, they cannot extend protection to the scent itself. This limitation undermines the fundamental purpose of seeking patent protection for a fragrance's identity.

Additionally, patents provide protection for a duration of 20 years, during which the invention must be disclosed to the public. This requirement, while promoting knowledge dissemination, can also facilitate imitation and potentially lead to infringement litigations. Consequently, perfumers may find themselves discouraged by the prospect of reduced monetary benefits after the patent's 20-year term of protection as people can copy the formulation. 

TRADEMARK

Registering a trademark confers a monopoly right, empowering the owner to prevent others from using the same or similar mark for comparable goods or services. Perfume names, company names, logos, product labels, and slogans are all eligible for trademark registration, provided they meet specific criteria and avoid being purely descriptive.

Distinctive smells associated with certain brands are identifiable trademarks, yet trademark protection does not extend to the underlying formula or scent. While it prohibits others from using the registered name, logo, or slogan, it does not prevent them from replicating the formula or scent for their own purposes. Therefore, trademark protection primarily safeguards the brand's identity and associated imagery rather than the composition of the fragrance itself.

TRADE SECRET

Perfumers have the option to safeguard their fragrances by keeping their formulations as trade secrets, thus protecting the method and ingredients used in crafting their scents. Unlike patents or trademarks, trade secrets allow the preservation of confidentiality without disclosing the information to the public.

However, a significant challenge with trade secrets is the risk of legitimate acquisition through independent development or analysis of legally obtained products, a practice known as reverse engineering. Competitors can replicate fragrances without violating trade secret protection, posing a fairness issue as the original perfumer's time and financial investment can be exploited without compensation.

Adding to the complexity is the absence of a formal trade secret law in India, leaving a gap in legal protection for businesses. Lacking a clear legal framework makes enforcing trade secret protection difficult, leaving companies vulnerable to theft and exploitation of their valuable intellectual property.

COPYRIGHT

Copyright is an important intellectual property right (IPR), safeguarding the creative expressions of art. Copyright safeguards authors' rights over their creations, ultimately aiming to reward creativity. Thus, it can be considered as an instrument to protect unique scents.

The Dutch Supreme Court Ruling: Recognizing Fragrance in Copyright Law

Due to the lack of significant jurisprudential development in India regarding scent protection, a landmark ruling by The Dutch Supreme Court in the case of Kecofa v. Lancome must be paid attention to. 

The judgment clarified that a perfume's scent is distinct from its recipe or the liquid composition containing it. Drawing an analogy, the court likened the scent to the content of a book, which is copyrightable, while the paper it is printed on is not. This interpretation implies that a perfume crafted with entirely different ingredients yet bearing the same scent could potentially infringe upon copyright. Conversely, a perfume with a similar formula but a different scent would not raise copyright concerns.

This ruling presents copyright as a preferable option over other intellectual property mechanisms such as patents, trademarks, and trade secrets. It stands out for its unique ability to protect the essence of scent itself, rather than merely its constituents or brand identity. 

Expanding Copyright Protection for Fragrances in India

In India fragrance can be given protection under certain provisions of the Copyright Act 1957 by making amendments or liberally interpreting the existing provisions. Section 2(c) of the Copyright Act, 1957 provides the what can be considered ‘artistic work’ to award the protection of copyright. It mentions-

“(c) “artistic work” means, —

(i) a painting, a sculpture, a drawing, an engraving or a photograph, whether or not any such work possesses artistic quality; 

(ii) a work of architecture; and

(iii) any other work of artistic craftsmanship;”

While the Indian Copyright Act provides protection for literary, dramatic, musical, and artistic works, sound recordings, and cinematograph films only. To expand the ambit of the act, fragrances can be considered for protection under the third category of artistic work i.e. “artistic craftsmanship”. The Indian law does not explain “craftsmen” explicitly. But it should interpret "craftsmen" to include perfumers since they, like other creators, aim to craft new fragrances that attract customers.

 Section 2(d) of the same act also provides who would be considered as an author. It says-

“(d) “author” means, — 

(i) in relation to a literary or dramatic work, the author of the work; 

(ii) in relation to a musical work, the composer; 

(iii) in relation to an artistic work other than a photograph, the artist; 

(iv) in relation to a photograph, the person taking the photograph;  

(v) in relation to a cinematograph film or sound recording, the producer; and 

(vi) in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created;”

India's copyright laws adhere to the Berne Convention. Article 2 of the Convention, established in 1886, sets global standards for copyright protection, including provisions benefiting developing nations. It defines a range of eligible works, mirroring India's Copyright Act, which covers creations appealing to both sight and hearing. 

However, to accommodate the interests of perfumers in today's society, there is a need to expand the scope of copyright protection to include fragrances perceived through olfactory senses. This may include expanding the definition of "author" to include “perfumers”, acknowledging their artistry. Such adjustments would broaden copyright protection for distinct fragrances, offering legal support to perfumers in the creative field.

Conclusion

In conclusion, while patents, trademarks, and trade secrets offer avenues for protecting fragrance innovations, each approach presents its own set of challenges and limitations. 

Patents provide limited protection for fragrances due to their inability to cover the scent itself, coupled with the requirement of public disclosure. Trademarks safeguard brand identity rather than the fragrance composition, leaving the underlying formula vulnerable to replication. Trade secrets offer confidentiality but are susceptible to reverse engineering and lack a clear legal framework in certain jurisdictions like India. 

Copyright does not suffer from any disability as such. However, the Supreme Court of France, in a 2013 judgment, stated that copyright law only protects tangible forms of creative expression. As fragrance is not tangible in the same way and lacks the requisite precision for communication, it cannot be protected under copyright. This suggests a criticism that copyright law may overlook certain forms of creativity, such as perfumery, due to its focus on tangible works according to jurisprudential standing regarding copyrights in France. As jurisprudential concepts apply differently to different countries, India must update its IP laws to support the evolving fragrance industry, promoting innovation and providing fair protection for fragrance developers while evaluating all the possible consequences.