Trademark Protection & Enforcement Group Head Elizabeth Sbardellati spoke with Glossy about the legal challenges of protecting fragrance formulas.
Excerpts:
“When you’re thinking of patent, trademark or copyright, fragrance is particularly difficult to protect because those laws just don’t really lend themselves to the physical manifestation of what a fragrance is,” said Elizabeth Sbardellati, head of Greenberg Glusker’s Trademark Protection & Enforcement Group. “You can reverse engineer pretty much anything that has a chemical composition. You can smell it yourself, have someone in the industry — a nose or a perfumer — identify what scents are in there, and tinker around and create something that is very similar. And because the fragrance itself isn’t capable of, for example, being trademarked or copyrighted, there’s nothing illegal about that exercise.”
“The issue with these types of lawsuits, trade dress or trademark infringement, is that they’re always going to be very fact-intensive,” said Sbardellati. “At the end of the day, it really comes down to the likelihood of consumer confusion, the egregiousness of the copying, the similarity between the packaging, what exactly is being said on the website and how it’s being presented.”
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