French Law Protects the Perfume Bottle, Not the Olfactory Rapture
A leading French perfume house launches a new eau de parfum: a celebrated nose, several years of development, a bottle designed by a renowned designer, a major ad campaign featuring an American actress. Three months later, a discount retailer puts an “inspired by” fragrance on the shelves for €6.
The press calls it a dupe, social media spreads concordance tables, and sales of the copied perfume
collapse.
This is one of the most striking paradoxes in French intellectual property law — in a country that prides
itself on being the world’s most famous home of perfume. You can protect the container of a perfume:
the bottle, the label, the name. But you cannot, or almost cannot, protect what gives a perfume most of its value: the fragrance itself. The law shields what we see and overlooks what we smell.
One Bottle, Several Rights That Stack
When it comes to the bottle, French law is generous. Three regimes can coexist and reinforce one another.
Copyright, no filing required
In France, every original form of creation is protected by copyright from the moment it comes into being, without any filing requirement. An original bottle — the Yves Saint Laurent Opium bottle (1977), designed by Pierre Dinand from a Japanese inrō, or the Boucheron Jaïpur bottle (1994), conceived by Joël Desgrippes as a ring-bracelet echoing the jeweler’s world — falls under this automatic protection. The term runs for 70 years after January 1 of the year following the author’s death.
But that protection has a cost: in case of litigation, the rightsholder must prove both the date of creation and its originality. And, naturally, the designer must have assigned their rights to the perfume house that employs or commissions them.
Design protection, an efficient tool
A design filing covers the new and individually distinctive appearance of a product. Protection initially runs for five years, renewable four times, for a total of twenty-five years.
In practice, this is a weapon of choice for perfume houses: design infringement proceedings are simpler than those defending a copyright, because the registered title carries a presumption of validity that proves particularly useful in court. Many disputes about bottles can be won on this ground alone, without ever invoking copyright.
The three-dimensional trademark, potentially eternal
When a bottle’s shape is distinctive enough to identify, on its own, the commercial origin of the product, it can be registered as a three-dimensional trademark in class 3 (perfumes and cosmetics). In theory, this protection is unlimited: it can be renewed every ten years, indefinitely.
But the validity of such a trademark is sometimes difficult to establish. The General Court of the European Union, in several rulings on the Coca-Cola bottle (notably the unfluted version), reiterated that the shape of a container can be registered as a trademark only if it departs “significantly” from the industry norm1.
In practice, on an iconic bottle, the three regimes stack up — and that stacking is what makes the defense effective when infringement occurs: if one fails, the others step in.
The Perfume’s Name: The Sinews of War
The verbal name of a perfume (“N° 5,” “Coco Mademoiselle,” “Sauvage,” “Aqua Allegoria”) is filed as a word mark. The logo, the typography, the visual signature can be registered as semi-figurative trademarks.
Of course, the chosen name must not infringe third-party rights, whether those of holders of pre-existing, exploited trademarks or of geographical indications — as Yves Saint Laurent learned the hard way when it had to give up naming its perfume “Champagne”2.
And the name of the house itself (“Serge Lutens,” “Nout,” “Guerlain”) often benefits from the enhanced regime of well-known marks, which forbids any use of the sign even outside the specialty class, as long as there is a risk of association in the consumer’s mind.
On this front, protection is solid — provided it has been built through coherent filings, active register monitoring, and renewal every ten years.
The Fragrance: An Impossible Protection
The fragrance itself — the juice, that is, what consumers actually buy the bottle for — is protected by no classical intellectual property regime.
This gap is the result of a nearly fifteen-year case-law saga whose outcome was not predestined.
The perfumers’ hope: a January 25, 2006 ruling
For a time, lower-court judges were receptive to the idea that a perfumer’s work deserved copyright protection. The Paris Court of Appeal, in a much-noted decision of January 25, 20063, held that:
“the existence of perfume families does not preclude that the fragrances belonging to them, by borrowing their dominant components, be protectable, where they are the fruit of an unprecedented combination of essences in proportions such that their effluvia, through the final olfactory notes that emanate from them, translate the creative input of the author, which is the case here.”
The reasoning was appealing: a perfumer makes aesthetic choices, expresses an artistic intent, signs a work. Why should the result not be a ‘work of the mind’ within the meaning of article L. 112-1 of the French Intellectual Property Code?
Hope quickly dashed by a Cassation ruling a few months later
A few months later, the First Civil Chamber of the Cour de cassation ruled the other way4 in an employment case opposing a former employee of Haarmann & Reimer to her employer. The reasoning is unambiguous:
“the fragrance of a perfume, which derives from the mere implementation of know-how, does not constitute, within the meaning of the aforementioned provisions, the creation of a form of expression that may benefit from copyright protection of works of the mind.”
The reasoning is legal before it is aesthetic: for copyright to apply, there must be a ‘form of expression’ — a fixation in a perceptible and reproducible form. The Court considers that a fragrance is merely a know-how, a knack, and not a formally expressive creation.
A solution confirmed a few years later
The Commercial Chamber of the Cour de cassation reaffirmed the ruling5:
“copyright protects creations in their tangible form only insofar as that form is identifiable with sufficient precision to allow its communication; the fragrance of a perfume, which — apart from its method of preparation, which is not itself a work of the mind — does not take a form bearing this characteristic, cannot therefore benefit from copyright protection.”
Since then, the position is settled: a perfume’s fragrance is not a work of the mind protectable by copyright. Several authors, some perfumers, and part of the doctrine consider that solution unsatisfactory in light of the creative reality of the craft. But it has become, in practice, the starting point of any analysis.
The other leads are not available either
In the absence of copyright, one might consider other paths. None is available.
A patent? A perfume is not a technical invention within the meaning of article L. 611-10 of the Intellectual Property Code. Unless one patents a new synthetic molecule (which is not the perfume itself), the patent route is closed.
An olfactory trademark? Trademark law long required that the sign be capable of graphic representation. As the Court of Justice of the European Communities recalled in the founding Sieckmann ruling6, a smell cannot be represented in a “clear, precise, self-contained, easily accessible, intelligible, durable, and objective” manner — not by a chemical formula, not by a verbal description, not by a sample, not even by a combination of these means. The graphic representation requirement has since been dropped by the EU Trademark Package; a “clear and precise” representation is now required… which changes nothing for perfumes.
A digression worth recalling: before Sieckmann, OHIM (now the EUIPO) had agreed, on February 11, 1999, to register “the smell of freshly cut grass” as a Community trademark for tennis balls7. That decision remained isolated. In any event, a smell must be distinctive of the goods or services it designates — a condition that would in any case make it very difficult to file, as a trademark, the smell of a product to protect the perfume itself.
Trade Secrets and Unfair Competition
When classical intellectual property is of no help, ordinary law can take over.
Trade secrets
Law No. 2018-670 of July 30, 2018, transposing Directive (EU) 2016/943, created in French law an autonomous trade-secrets regime (art. L. 151-1 et seq. of the Commercial Code). A perfume’s formula can be protected on this basis as a secret, on three cumulative conditions:
- the information is secret — that is, not generally known to, or readily accessible by, people in the sector;
- it has commercial value, actual or potential, precisely because it is secret;
- its holder has taken reasonable protection measures: NDAs and confidentiality clauses, restricted access, “confidential” markings on internal documents, and management of employee departures.
This is today the main tool for preventing a former collaborator, a subcontractor, or a competitor from appropriating the composition — especially when the perfume is not yet on the market. The tool does not protect against reverse engineering, which is lawful. It punishes the unfair acquisition, use, or disclosure of a formula.
Unfair competition and parasitism: an open judicial path against “dupes”
When the copy is slavish and designed to profit from the renown of an earlier creation, article 1240 of the French Civil Code and the provisions of the Consumer Code are available. One Versailles decision, admittedly old, deserves mention.
The Versailles Court of Appeal8 condemned the manufacture and distribution of a perfume whose fragrance was a “near-slavish copy” of Cacharel’s Anaïs-Anaïs, noting that olfactory tests revealed near-perfect similarity and that a chromatographic study confirmed a “strong correlation” between the two products. The court saw in this commercialization an act of unfair competition and parasitism: the distributor was inducing consumers to substitute, for the original perfume, the cheaper copy.
Protection against “dupe” concordance tables
The Cour de cassation9 held that a perfume company’s use of a concordance table between perfumes created confusion in the mind of the public and amounted, on that basis, to acts of trademark usurpation and unfair competition.
At the European level, the position is convergent, though on the ground of misleading and unlawful commercial practices: in L’Oréal v. Bellure10, the Court of Justice held that an advertiser who presents its product as an imitation of a well-known mark takes unfair advantage of the renown attached to that mark, which amounts to unlawful comparative advertising within the meaning of Directive 2006/114/EC.
Around the Bottle, an Entire Chain of Rights
Perfume law does not stop at the product itself. All the surrounding communication — photo campaign or commercial film, presence in the press and on social media, influencer posts, promotional packaging — mobilizes rights that must be acquired contractually, or an entire campaign may have to be pulled.
The model’s right of publicity requires a precise authorization contract (duration, territories, media, possible exclusivity, renewal terms). The copyright of the photographer, the art director, the commercial film’s director, or the creative agency requires an express assignment, in accordance with article L. 131-3 of the Intellectual Property Code, on pain of nullity. Contracts with influencers must now comply with Law No. 2023-451 of June 9, 2023, which regulates the commercial activity of content creators, and with its implementing decree requiring a written contract from €1,000 in services upward. Every link in the chain must sign a specific rights assignment.
This is what is called clearance: the upstream securing of the chain of rights. It is patient, painstaking work that only shows when it has been done badly — when, months after a launch, a forgotten photographer or a poorly contracted model comes claiming what they are owed and threatens to halt the campaign.
A Well-Protected Perfume Is Never Protected by a Single Legal Tool
What emerges from this map is no surprise to anyone who practices intellectual property: no single protection covers a perfume in its entirety. The fragrance is not a work. The trademark protects the name but not the smell. The design protects the shape but not the composition. The trade secret protects the formula but not the bottle’s silhouette. Unfair competition can only be invoked in reaction, and only on condition that evidence exists.
Effective perfume defense is built by combining three or four rights. To this is added a discipline that is rarely instinctive: constant monitoring, systematic contracting with everyone involved, and careful preservation of all evidence of dates of creation.
This bespoke legal architecture is what distinguishes a well-armed perfume house from one that discovers, on the day of a dispute, that its titles are fragile or that its contractual chains are coming apart.
LAZULI Advises Perfume Houses and Creators
The firm acts both for perfume houses and their distributors — in upstream protection (trademark and design filings, assignment contracts, portfolio audits, confidentiality agreements, and trade-secret protection advice) and in contentious defense (infringement, unfair competition and parasitism, invalidity actions, oppositions before the INPI and the EUIPO) — and for independent creators (perfumers, bottle designers, photographers, models) who wish to capitalize on and defend their rights.
LAZULI also offers fixed-fee consultations to assess the strength of a portfolio, analyze a dispute, or build a protection strategy tailored to the cosmetics and perfumery sector. The firm also drafts the contracts of the communication chain: rights of publicity, copyright assignments, influencer partnerships, and creative subcontracting agreements.
Jérémie LEROY-RINGUET, June 2026
- GC, February 24, 2016, T-411/14 ↩︎
- Paris Court of Appeal, December 15, 1993, RG No. 93/25039 ↩︎
- RG No. 04/18300 ↩︎
- Cass. civ. 1, June 13, 2006, “Bsiri-Barbir” No. 02-44718 ↩︎
- December 10, 2013, No. 11-19.872: ↩︎
- ECJ, December 12, 2002, Case C-273/00 ↩︎
- CTM No. 000428870 ↩︎
- November 8, 2001, RG No. 1998-7686, “ADDIS v. ANAÏS-ANAÏS”. See also Versailles, March 15, 2001, INPI No. M20010203. ↩︎
- Cass. com., January 27, 1981, No. 79-11805 ↩︎
- CJEU, 1st Chamber, June 18, 2009, Case C-487/07 ↩︎
