Fake perfume not illegal

2010-11-14 22:13

Paris - Kenzo Flower or Coco Chanel? Take your pick among dozens of fragrances, copied for a fraction of the price. This is the promise made by a growing army of "smell-alike" perfumers - and they have the law on their side.

Like the rest of the luxury industry, perfumers are under assault from imitators set on cashing in on their brand image, and websites that openly claim to copy top fragrances are flourishing on the internet.

One British site - Perfume Parlour - offers perfume oils with the "same top, heart and base notes as the designer perfumes" - for around one-tenth of the price tag.

While there may be little market for a designer handbag without the designer logo, consumers who buy knock-off designer scents don't parade the bottles in public, making the copies harder to sniff out.

And unless the copycats infringe on a trademark, for instance by copying a bottle shape or logo, perfumers are powerless to stop them in court.

"Everyone agrees that copying a painting is breaking the law, but copying a perfume is not, according to much of the judicial world," says Jean-Pierre Houri, president of the International Fragrance Association (IFRA) whose members represent 90% of the $8bn global industry.

Trade secrets

To protect itself from copycats, perfumers have traditionally relied on secrecy - keeping their precious formulae under tight wraps.

While, in theory, perfumers can patent the composition of a perfume, the great majority choose not to, precisely because it would require them to reveal their formulae.

Perfume Parlour says it currently uses a process called gas liquid chromatography to analyse the chemical composition of designer scents, and then distils its own imitation oils.

If its recipes were freely available, the perfume industry argues, there would be no stopping the counterfeiters, who would only have to tweak a few details to escape the law.

That is why the industry is troubled by the growing pressure it faces to disclose its formulae in the interests of consumer health and safety.

Under a right-to-know bill proposed this year in California, the industry would be required to reveal the precise compounds used in its perfumes. The California bill is currently stalled, but the IFRA believes it is only a matter of time before similar legislation is enacted around the world.

"We are caught between a rock and a hard place," Houri told AFP. "The right-to-know movement is a deep social trend. But confidentiality is fundamental as long as we cannot protect our creations."

IFRA recently published a list of all the fragrance materials used by its members worldwide - running to about 3 000 entries - but that is currently as far as the industry is willing to go.

Industrial perfume

Fine fragrance is in the eye of the storm, but the same problem faces industrial users of perfume - the shampoo and laundry powder manufacturers who make up 75% of the market, and for whom fragrance is a key marketing asset.

According to Allan McRitchie, a UK perfumer and marketing consultant, "we have to find whatever way we can to protect that intellectual property."

Currently, he says, it is possible to make court cases around technologies used to deliver a perfume, around new materials, or even secondary benefits such as anti-bacterial properties.

"But a lot of perfumes don't fall into these categories."

For many in the fragrance world, the answer is to convince the courts and regulators that perfume is an art form - and its creations, the scents themselves, therefore eligible for copyright protection.

Courts around the world have ruled in recent years that perfumery involves only technical know-how, not art.

However, IFRA is leading the charge: last month it filed a report with a French appeals court in a case pitting L'Oreal against a perfume maker, making the case for classifying perfumes as works of art.

The ruling is due in December.


On the political front, IFRA is inviting a European lawmaker to tour a Paris laboratory this month to see perfumers' work up close.

As a perfumer for the Japanese giant Takasago International, which supplies scents to top fine fragrance, cosmetics and consumer product brands, Laurence Fanuel believes "scents are like stories."

Flowers, essences and chemicals are fused into a complex potion to trigger a flood of pleasure, emotions and memories. When Fanuel creates a new perfume, there is no doubt in her mind as to what she is doing.

"If art can be defined as a combination of elements that excite the senses, trigger emotions and stimulate thoughts - why isn't perfumery classified as an art form?" asks the Paris-based perfumer.

To create a new scent, she draws inspiration from other art forms, natural scents such as those given off while cooking, from her own past experiences and from "a passion for mixing unexpected things".

She also sees clear links with other arts: just as a film can "overdose" on a particular light technique or colour, a perfumer can overdose on a scent to create a "signature", and dress up the fragrance around it.

"And if you say perfume is an art, you will be able to protect it like any other art form."

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