Perfume has become an essential product for individuals in society. Proper use of Perfume can boost self-confidence, enhance mood, and provide aromatherapy benefits. Different perfume scents can also serve as a unique characteristic of each individual, tailored to their personality. The fragrance of Perfume can evoke nostalgic memories stored in the brain, creating a sense of nostalgia for those who smell it.
Perfume holds excellent value, and the creators of these fragrances deserve recognition, appreciation, and protection for their work. From the intellectual property rights perspective, Perfume can be considered a protected object. In Indonesia, various intellectual property laws can safeguard different aspects of a perfume product, such as industrial design laws protecting its packaging, trademark laws safeguarding its name, and patent laws protecting specific processes involved in its creation, including formulation and bottle design.
However, specific legislation in Indonesia must address the protection of perfume aromas. Yet, each Perfume possesses a distinctive and valuable scent. This issue is closely related to the criteria for a work to be protected by copyright law, which includes originality, creativity, authenticity, and tangible form.
Recently, there has been an increasing trend of counterfeit fragrance traders selling imitation perfumes resembling well-known brands. These counterfeit perfumes are often sold at lower prices, posing a threat to the target market of renowned perfume companies and causing financial losses.
Case of Counterfeit Fragrance Aromas from Famous Brands
Dupe perfumes are types of fragrances that closely resemble expensive imported brand scents. Some dupe perfumes have similar packaging and brand names to the original products. In Indonesia, selling dupe perfumes with packaging and labels resembling genuine products can lead to imprisonment for up to 1 year or a maximum fine of Rp 200,000,000, as stated in Article 102 of Law Number 20 of 2016 concerning Trademarks and Geographical Indications. This is because dupe perfumes that imitate genuine products fall under criminal offences outlined in Chapter XVIII, specifically Article 100(2) of the same law. It is important to note that this offence requires a formal complaint and can only be prosecuted if reported by the affected or victimized party.
Protection of Perfume Aromas in Various Countries
Protecting perfume aromas within legal frameworks is still debated among experts. This is due to the difficulty in determining the level of similarity between different perfume scents. However, despite the current challenges in assessing the similarity criteria for aromas, future regulations in several countries will still need to address this issue.
In the Netherlands, perfume aromas can be protected by copyright law if they are perceptible and original. This can be seen in a case involving the French cosmetic company Lancôme, which sold an exclusive perfume named Trésor. A small Dutch company named Kecofa sold its fragrance “Female Treasure” at ten per cent of Lancôme’s price. Lancôme attempted to stop Kecofa by claiming that the fragrance should be protected by copyright. The claim was successful and upheld by the Dutch Supreme Court. The court ruled that a perfume can be protected under copyright law if it is unique and lacks similarity to other fragrances, displaying a personal touch in its aroma.
In the United States, copyright law qualifications for perfume protection are similar to general copyright regulations. There are three main requirements for a work to be protected by copyright: original, personal, unique, and tangible form. Perfume can be recognized as an original work if its aroma possesses a unique personal characteristic. Perfume is also considered a tangible entity in the form of liquid. As one source mentioned, “Perfume is an art form in the same genre as music and painting. It requires talent, expertise, and, most of all, passion.”
Conclusion
As a product resulting from human creativity and unique thought processes, Perfume deserves inclusion in the legal framework for copyright protection. Although only a few countries have implemented such regulations thus far, revisions to existing laws, particularly in Indonesia, may incorporate them.
Intellectual property protection is crucial for the sustainability of your business and products. It should not be limited to a single jurisdiction but extended internationally to the countries where your products are marketed. We highly recommend collaborating with experts from reputable law firms.
Am Badar & Am Badar, as an IP Law Firm with over five decades of experience, can assist you in handling all legal matters concerning your company. If you require expert assistance in protecting, monitoring, and resolving intellectual property-related legal issues, don’t hesitate to contact us at ambadar@ambadar.co.id.
References:
www.wipo.int