Scent of a Lawsuit

Elaine Sciolino has a fun article today on conflicting court decisions in France on the i-propertization of perfume. The article is a veritable smorgasbord of synesthesia, as various groups propose the following metaphors to make their case:

“For me this is pure artistry,” said Sarah Delville, 28, as she worked on her project at the International Superior Institute of Perfume, Cosmetics and Food Aromas. . . . “We’re not just mixing chemicals. We’re creating images.”

[Denying royalty rights to a perfume maker,] the Cour de Cassation . . . stated, “The fragrance of a perfume, which results from the simple implementation of expertise,” does not constitute “the creation of a form of expression able to profit from protection of works of the mind.”

A lawyer says “Perfume is not only a simple aesthetic creation. It is also an assemblage of molecules, a technical solution to a technical problem.”

And most grandly of all, the the “official ‘nose’ of Hermès” says “When I write a perfume, the scents are the words. . . and with these words I construct a story. There is breathing, and there are transitions, just as in sentences. Perfume, first of all, is a mental construction.”

Ahh, I can imagine Mallarme or Kandinsky delighting in that turn of phrase.

What surprises me in the article is how little attention is paid to patent and trademark. On the patent side, I’m sure I recall some case involving the patentability of mixtures of perfumes. And “Scentercourt” seemed to vindicate the trademarkability of grass smell as a sensory mark for tennis balls…though contrary Euro-authority exists. It seems like most of the discussion in the article focuses on a kind of copyright theory….one more example of the law’s “struggle with aesthetic subjectivity.”