INTRODUCTION
A distinct scent has immense recall value and the potential to become a powerful identifier of a brand. Several luxury brands, including Tom Ford, Chanel, and Dior, annually invest millions into developing and marketing their signature perfumes. According to recent reports, the global fragrance industry is projected to be worth USD 53.4 billion in 2025. However, the rise of fragrance dupes has ignited controversy surrounding legality, ethics, and intellectual property rights. While dupes offer affordability to consumers, they pose a serious challenge to the exclusive and aspirational aura of luxury products.
CURRENT LEGAL LANDSCAPE OF PERFUME PROTECTION
The trademarking of scents is not unheard of, and various jurisdictions have granted trademark protection to scent marks. These include an olfactory mark given to bitter beer-scented darts and a plumeria blossom-scented embroidery thread. Most notably, in 2018, the Hasbro toy company registered the distinctive smell of their toy ‘Play-Doh’ as a scent trademark. It is important to note that in all these cases, scent was not the primary feature of the product and had no functional utility.
The main obstacle to trademarking scents is the operation of the Doctrine of Functionality. This doctrine essentially states that functional aspects of any product cannot be registered for trademark protection. Hence, in the case of olfactory marks, it is difficult to prove that the scent is not a functional part of the perfume.
The formulations, compositions, or even descriptions of perfumes have not been able to secure necessary protection under intellectual property rights due to the subjective nature of how a person perceives a smell. While brand names, logos, and packaging are graphically representable and can be trademarked, scents cannot be represented in this manner and thus do not enjoy trademark protection. This legal ambiguity has left room for dupes to thrive, posing significant challenges to luxury brands.
EMERGENCE OF FRAGRANCE DUPES
Over the past several years, there has been a significant surge in the popularity and promotion of dupe perfumes. These products are essentially replicas of luxury or designer fragrances, crafted to mimic the scent profile of high-end perfumes at a fraction of the cost. Dupe perfumes are often marketed as affordable alternatives to their premium counterparts, offering similar fragrances without the hefty price tag.
It is crucial to distinguish between dupes and counterfeit perfumes. Counterfeit perfumes are unauthorized imitations that not only replicate the scent of a branded perfume but also copy its packaging, bottle design, and branding. These counterfeits are deceitfully marketed as genuine products, often misleading consumers. Dupes, on the other hand, focus solely on recreating the fragrance or essence of a designer perfume without imitating its external appearance, such as packaging or branding. Dupes position themselves as affordable alternatives to luxury perfumes, offering a similar olfactory experience without attempting to pass as the original.
The market for dupe perfumes is largely being fuelled by two factors, consumer demand and social media marketing. The luxury goods industry is highly aspirational, and most regular consumers are unable to afford the exorbitantly priced perfumes of high-end brands. Economically priced perfume dupes become highly appealing, allowing consumers to experience luxury scents without spending a fortune. Additionally, the widespread promotion of dupes on social media platforms, driven by influencers and trendsetters, has further fuelled their popularity, amplifying their reach and appeal.
LEGAL CHALLENGES AND ETHICAL CONCERNS OF PERFUME DUPES
Fragrance dupes operate in a legal grey area because they do not directly copy trademarked logos or packaging. Instead, they replicate the formula and scent of high-end fragrances, enabling them to escape legal repercussions related to trademark infringement.
As dupe fragrances do not claim to be the original product or to have an association with a brand, they market their imitation scents as alternatives to high-end products. They also take refuge under the exception granted for comparative marketing, making reference to the luxury product solely as a point of comparison in their advertising.
The growing market for perfume dupes has impacted the high-end perfume industry significantly. Luxury brands struggle to make sufficient returns on the substantial investment required for developing and marketing their fragrance lines. Meanwhile, dupe brands capitalize on the reputation and recognition acquired by high-end products, achieving greater sales due to their lower prices. This dynamic creates an imbalance that many view as ethically unjust.
Crafting a luxury fragrance is a complex process involving skill, innovation, and craftsmanship. Dupe perfumes bypass this intellectual effort and instead reverse-engineer the finished product to copy the essence of designer fragrances. This undermines the creative and intellectual labour involved in creating a fragrance, which often goes unrecognized due to the absence of comprehensive intellectual property protection.
JUDICIAL STANCE ON TRADEMARK PROTECTION TO PERFUMES
One of the earliest attempts to secure trademark protection for a perfume was made by Chanel for their flagship scent, ‘Chanel No. 5.’ Despite its global reputation and distinct association with the Chanel brand, their trademark application was denied.
Currently, most jurisdictions apply the Sieckmann Seven-Fold Test to assess whether unconventional marks, including smells, should be granted trademark protection. The test was developed in Sieckmann v. Deutsches Patent-und Markenamt and evaluates factors such as clarity, precision, objectivity, and intelligibility in the graphical representation of a mark. Based on this stringent test, registering olfactory marks has proven to be almost impossible.
In a landmark 2023 decision, the District Court of Hamburg addressed trademark infringement related to perfumes. The court ruled against a digital magazine that had promoted dupe perfumes as “fragrance twins” of expensive brands, deeming this both trademark infringement and unfair competition. The defendant was ordered to cease publication and pay damages to the claimant.
Judicial rulings on olfactory marks and perfume dupes vary globally. While European courts have occasionally shown an inclination to protect smells, no olfactory marks have been recognized in India. Nowhere has a perfume or fragrance itself been granted trademark protection yet.
POSSIBLE SOLUTIONS TO THE LEGAL CHALLENGES
Protecting designer perfume brands from exploitation by dupes requires a multi-pronged approach to overcome current obstacles in trademark registration. While expanding the scope of trademark protections to include fragrance compositions seems like the most straightforward solution, implementing it poses challenges.
The most critical step would involve re-evaluating the Functionality Doctrine and the Sieckmann Seven-Fold Test to account for the unique nature of olfactory marks. Establishing a robust legal framework to safeguard fragrance compositions is vital for balancing artistic creativity and fair competition.
From a business perspective, luxury brands could invest in consumer education, highlighting the skill and craftsmanship involved in creating their perfumes. Clear communication about the differences between original perfumes and dupes might empower buyers to make informed decisions. Luxury fragrance houses could also consider introducing more affordable “entry-level” perfumes, maintaining their brand identity while catering to a broader audience.
CONCLUSION
The rise of fragrance dupes highlights the vital role of trademark law in the protection of luxury perfume brands. While trademark law provides a means to safeguard logos, packaging, and brand names, the lack of direct protection for the scents themselves remains a significant gap in intellectual property legislation.
Addressing the issue requires refining trademark laws to better protect branding and associated identifiers, but also calls for thoughtful engagement with the complexities of olfactory marks. Expanding the scope of trademark protection to fragrance compositions could prove transformative, offering a legal shield to the creative and intellectual efforts of luxury perfume houses.
The challenge lies in striking a balance between protecting the artistic and commercial value of perfumes and fostering fair competition in the marketplace. Ensuring this balance will require active legislative efforts, global consensus, and an appreciation for the unique blend of artistry and innovation that defines the fragrance industry.
Written by Varshika, Legal Intern at Intepat IP
