Of all our senses, smell is the most powerful when it comes to memory and emotion. A familiar scent—like rain on dry earth or a loved one's perfume - can bring back forgotten moments with surprising clarity. Since smells shape how we remember, react, and connect – they can also serve as a powerful connector to a product or service. For example, the signature smell of Play-Doh modelling compound - a scent of a sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough - is registered by toymaker Hasbro as a scent mark in the United States and helps differentiate its products from competitors.
But if the product itself is a perfume, can its distinctive smell serve as a trademark? Obtaining monopoly rights over a fragrance is rather complex – an issue this article serves to highlight.
Trademark Rights Over Smell
The first level of scrutiny must focus on the nature of the product. A scent or smell is perceived by the nose and not by the eye and there is no standardised manner to depict a perfume in a visual manner. In trademark speak, it means that a perfume or smell cannot be graphically represented and this is one of the essential elements of defining a trademark under the Indian Trade Marks Act, 1999 (Section 2(zb)).
Further, practically speaking, a fragrance does not produce standardised results on application. When one tries out a perfume, one is encouraged to spray it on skin to see how it smells – there are variations across people as smell is subjective in nature. The smell also changes over time - as one may have experienced post application. These characteristics pose a further hinderance. Even if one takes away the condition of graphic representation of a trademark – which, for instance, no longer exists under EU trademark law - a perfume can find it difficult to satisfy the necessary condition of clear and precise representation.
Another facet is that in the case of perfumes, the smell is the very product itself and, in that sense, it is a functional feature. The doctrine of functionality in trademark law asserts that a product's functional features cannot be trademarked. The rationale is that markets would not be truly competitive if newcomers could not make products with a feature that consumers demand. And it can be argued in the case of perfumes that the smell itself constitutes the feature that the consumer wishes to purchase, as distinguished from an assurance that a particular entity has made the perfume (which is the function of a trademark).
Thus, acquiring trademark rights over the smell of a perfume is not very feasible. Notably, no olfactory marks have been granted registration in India as yet.
Does Copyright Hold An Answer
Stemming from a decision by the Dutch Supreme Court in 2006 - Lancôme v. Kecofa – some argue copyright protection for a perfume. The decision reasoned that a scent may be protected under Dutch copyright law, given its open, non-exhaustive definition of 'works.' The court suggested that a scent is perceptible, can be original, and may bear the creator's personal imprint — making the scent itself, not the formula, the subject of protection.
In contrast, a French court concurrently ruled that a perfume (Dior's Dune) is not copyrightable. A 'nose' cannot be considered as an author and a fragrance results from technical expertise and not artistic expression that qualifies as a 'copyrightable work' under French law. In 2013, Lancôme's claim that the fragrance of its Trésor perfume was a copyrightable 'work of the mind,' was rejected. The court reiterated that copyright protects creations in their tangible form, so far as this form is identifiable with sufficient precision to permit its communication; whereas the fragrance of a perfume, which, outside its process of development that is not itself a work of the mind, is not a form that has this characteristic, and therefore cannot be protected by copyright.
Shifting focus to India, whether a perfume could be classified as an artistic work under copyright law is a question that is confined to the realm of speculation.
Addressing Limitations
That said, perfumes comprise complex chemical formulations and if kept confidential, these formulae may be protected as trade secrets. To successfully protect information as a trade secret, a company must be able to show that such information has an economic value and that the company has taken steps to maintain its confidentiality. However, trade secret protection does not act as a bar against independent development of a similar scent by a third party. In this regard, patents are not very helpful either as they mandate full disclosure of a formulation – not very desirable in the case of a prized perfume - in exchange for a monopoly limited in most cases to 20 years.
It is pertinent to mention here that, in India, some perfumes may be protected under the Geographical Indications statute. Due to the role of perfume production in Kannauj (Uttar Pradesh), the city is known as "the perfume capital of India"/ "Kannauj is to India what Grasse is to France". The skills used to manufacture perfume from flowers and natural resources have been passed down through successive generations over thousands of years and Kannauj Perfume became a registered GI in 2014.
Given the many challenges of protecting a fragrance per se under IP law, perfume products are typically protected based on allied characteristics. These may include the name of the perfume, the logo used, the shape of the bottle/ overall trade dress - all of which may be protected as trademarks. Such means of protection have seen robust enforcement in India.
Enforcement
In Zino Davidoff SA v. Ramsons Perfumes Pvt. Ltd. & Ors (2024), Davidoff had secured a 3D trademark registration (No. 2095278 in Class 3) for a dumbbell shaped bottle it was using for its perfumes. Upon learning that Ramsons was also selling its perfumes under the brand 'Ramsons Bravo' in a dumbbell-shaped bottle, it filed a suit for infringement and passing off. The district court found that the packaging of the defendant's product 'Ramsons Bravo' was a replica of the plaintiff's (Davidoff) product. Despite the fact that the defendants were not using the actual trademark of the plaintiff, and there was a price differential between the rival products, the similarities were so glaring that customers were likely to be deceived. The court issued a permanent injunction restraining the defendant from, "dealing in perfumes in an identical dumbbell shape bottle as used by the plaintiff for its product Davidoff Champion, which amounts to infringement of the plaintiff's registered trademark Davidoff Champion 3D, passing off and violation of plaintiff's dumbbell shape bottle."
Burberry Limited v. M/s Petrol Perfumes & Ors (2024) is another notable example of trademark and trade dress protection in India connected with perfumes. Burberry, which had adopted the 'Mr. Burberry' perfume mark globally in 2016 and extensively used it in India, challenged the defendant's use of the mark 'Mr. Petrol' for identical goods. Although the defendant had secured registration for the mark in India, Burberry alleged the defendant was a habitual infringer and in this case, pointed to the striking similarity in trade dress— including font, writing style, colour scheme, bottle shape, surface pattern, and the overall look and feel of the product. The Delhi High Court, despite the defendant's registration, found that the use of 'Mr. Petrol' on identical goods was intended to deceive consumers and ride on Burberry's goodwill. It held the adoption to be mala fide and amounted to passing off. An interim injunction was issued and the matter was subsequently referred to mediation.
Dupes
Dupes—short for "duplicates"—are trending. They are low-cost alternatives to high-end products that imitate their style or design – creating an 'affordable luxury experience'. For example, a budget handbag resembling a luxury one offers a similar look at a fraction of the price. Popular on social media, they're often promoted by influencers as affordable "dupe deals." It is also becoming common for mainstream fashion and beauty publications to cover dupes. Similar to 'Baccarat Rouge 540' is 'Sol de Janeiro's Cheirosa '68 Body Mist'. YSL's 'Black Opium' can be compared to 'Dossier Ambery Vanilla' and 'Miss Dior' has competition in Zara's 'Nude Bouquet'. Indian publication 'The Voice of Fashion' reports that in 2023, the fragrance market in India was valued at roughly $1350.5 million and is expected to grow at a rate of 11.3 per cent till 2029. It states that the internet is rife with content that compares luxury perfumes with their affordable counterparts – these include Moi by Nykaa, Renee Cosmetics, Indinoir, XLNC Perfumery and StudioWest by Westside.
Unlike counterfeits, dupes don't claim to be the original. They typically avoid copying trademarks or logos and are sold under different brand names, reducing the risk of consumer confusion - a key element in proving trademark infringement. Legally, no trademark rights are violated unless dupes cross the line of unfair competition or misleading advertising.
Seeking Solutions
Faced with competition, luxury brands must remain vigilant, taking swift legal action against infringers and monitoring platforms closely – particularly social media content and e-commerce sites. Strategic marketing that highlights originality, quality, durability and composition (safe and natural ingredients) can also help defend market share. Interestingly, in a landmark 2023 decision, the District Court of Hamburg ruled that an online-magazine article about so-called perfume dupes being 'smell alikes' of well-known perfumes amounted to trademark infringement. The defendant was ordered to cease publication and pay damages to the claimant.
Longer term, there is talk of exploring new protection models to create a system where perfumers can safely and legally protect their formulae and license their creations for other people to interpret and remix. This could also help create a revenue stream from dupes whilst retaining creative control. Perhaps copyright law may offer a solution - parallels are drawn many a time with protecting music which too is visually intangible but can be written down on paper. A whiff of scent, a touch of creativity—and voilà, a worthy solution may be just a sniff away.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
