L'Oreal, Lancome and Laboratoire Garnier claimed that a
series of companies sold perfumes that not only smelled like some
of their signature fragrances, but used packaging, names and styles
that took unfair advantage of its own brands.
The perfumes which the companies thought had had their trade
marks infringed included Anais Anais, Noa, Tresor and Miracle. The
company claimed that seven companies manufactured products which
infringed the intellectual property rights of its brands.
Justice Lewison ruled that premium perfume makers' passing off
claims should not be upheld, but did rule in favour of them in
relation to two sections of the Trade Marks Act. He said that the
boxes of two of the smell-a-like perfumes 'La Valeur' and 'Pink
Wonder' were sufficiently similar to Tresor and Miracle to take
unfair advantage of the character or reputation of the trade
marks.
Lewison said that any similarities did not amount to 'passing
off'. The case also dealt with the use of the trade marked names of
premium perfumes in sales material relating to the smell-a-likes.
Salespeople had directly referenced the premium perfumes in the
sales process of other perfumes, Lewison found.
The case did not deal with the actual smells of the perfumes,
but perfume smells have enjoyed protection before. A Dutch court
ruled earlier this year that the smell of Lancome's Tresor deserved
copyright protection.
The Supreme Court in The Netherlands ruled in June that the
blend of ingredients that went to make up Tresor represented an
original work of authorship and therefore qualified for copyright
protection.
In that case the court ruled that a smell-a-like was a
deliberate imitation of Tresor and ruled against its manufacturers.
That judgment confirmed a previous judgment by the Dutch Appeals
Court.
