Image: Marc Jacobs

Late last year, the highest court in the European Union was considering one of the legal question on its plate. However, instead of determining the validity of Christian Louboutin’s famous blood-red shoe sole trademark or whether notoriously image-conscious and protective luxury brands should be able to block the sale of their (authentic!) goods on platforms they do not deem to be worthy, this was something of a different issue. The Court of Justice of the European Union (“CJEU”) was tasked with considering the protectability of cheese.

The case, itself, ended up before the European Union’s most senior court after Levola, the Dutch cheesemaker behind a popular spread called Heks’nkass sued rival Smilde Foods for allegedly infringing its copyright in the taste of the spread. “Can the taste of a food product be protected by law?” That was the issue that made its way through courts in the Netherlands before finding itself at the mercy of the CJEU, with Levola asserting that the taste of food is, in fact, protected by copyright law.

In November 2018, following a 4-year long fight, the CJEU handed down its decision. “The taste of a food product is not eligible for copyright protection,” the court had determined. Unlike more traditional creative works, such as literature, photography, films, and song lyrics and recordings, for instance, the taste of a food product cannot be precisely or objectively identified, and as a result, the Luxembourg-based CJEU sided with Smilde Foods before sending the case back down to the lower court to finish.

While, the court’s decision might seem obscure for any party operating outside of the cheese-making business, or outside of culinary arts, more generally, it is actually anything but that. 

In fact, this particular case – and its outcome – are significant in that they stand to affect much more than just cheese. “The CJEU’s refusal to find the taste associated with a specific cheese protectable implies that other similar products, such as perfumes, might not be subject to copyright protection either,” according to Estelle Derclaye, a Professor of intellectual property law at the University of Nottingham.

Not merely an issue exclusive to cheese, the protection of fragrances – core consumer products that make up a nearly $40 billion global industry – is no small matter, especially not for the corporate giants that derive significant revenue from mainstay scents, products that, unlike most garments and accessories, can remain in fashion not just for seasons, but for decades. Chanel’s No. 5, for instance, has been on the market since the early 1920’s.

It is unclear whether or not copyright law in the Netherlands is willing to protect scents. According to Banner & Witcoff’s Liz Brodzinski, “Levola pointed to a 2006 case in which the Supreme Court of the Netherlands acknowledged the possibility of recognizing copyright in the scent of a perfume. However, the Regional Court of Appeals noted that in a similar case in 2013, a French court firmly rejected the possibility of recognizing copyright in the scent of a perfume, thereby demonstrating that there is no uniform position on the matter of scent copyrights in Europe.”

In the U.S., it is similarly unclear if scents are protected by copyright law (due to a lack of case law on the issue). However, it is well established that trademark law is willing to cover them. In addition to traditional trademarks, such as brand names and logos, smell is a protectable element of a product, as long as that scent serves to identify a single source (i.e., brand) in the minds of consumers. The first scent-specific trademark – for a “high impact, fresh, floral fragrance reminiscent of Plumeria blossoms” – was registered by the U.S. Patent and Trademark Office (“USPTO”) in 1991.

Since then, the USPTO has registered a number of scent-related marks (on the supplemental register), including New York-based jewelry company Le Vain’s mark for the “scent of chocolate” for use in connection with jewelry retail store services; Verizon Wireless’ mark for “a flowery musk scent” for “retail store services featuring communication products and services and consumer electronics;” and Play-doh maker Hasbro’s “scent of a sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough” for use on the children’s toy.

Even if the law is clear on the protectability of scents, in terms of trademarks, the bar for achieving protection can be relatively high. As we speak, Drybar, the popular chain of blow-dry salons, is currently seeking trademark registrations for hair products and candles with a “scent of coconut, amber, and vanilla,” as well as “jasmine, sandalwood, and Madagascar vanilla.” Those applications, which were filed this summer, are facing pushback from the USPTO, which says that “hair care preparations and candles are routinely scented items,” and as a result, “consumers would not associate any particular scent, especially one as commonplace as a mixture of coconut, amber, and vanilla, with a particular source.”

According to Derclaye, “It may be that one day it will be possible to identify tastes and smells with enough precision and objectivity and that they will be protected by copyright in the European Union. But for now, companies can imitate their competitors’ cheeses and perfumes without the fear of breaching any copyright.” In the U.S., the same very well might be true, unless, of course, your competitor can claim trademark rights for the scent (or patent rights over the ingredients).

Due to the well-documented litigiousness of fashion’s biggest names, chances are, if copied, they will try to wage a smell-alike war.