Between inspired perfume and the law that oversees it
Written by Olivia Nabila | Read in Indonesian
The inspired perfume trend is re-emerging. Lately, there have been many shops selling perfumes that smell like designer scents, such as those of Baccarat.
Inspired perfume seems to be an alternative to enjoy luxury fragrances at lower prices.
Actually, there is no definite definition of inspired perfume. However, if we look at its marketing practices, we can say that inspired perfume is a perfume that has a scent that is similar to or resembles the perfume that inspired it.
Inspired perfume is very easy to get and is a popular product in marketplaces and social media platforms, with prices starting from Rp3000 rupiah.
So, what will be of businesses who are the source of inspiration of such products? Haven't they spent money, time and energy to produce perfume that will boom? This inspired perfume practice raises two questions: first, is it allowed to sell perfumes that smell like other perfumes? Second, in marketing the product, is it allowed to mention other brands as a comparison?
Legal protection of perfume
The Oxford Dictionary describes perfume as a fragrant liquid, typically made from essential oils extracted from flowers and spices, used to give a pleasant smell to one's body.
Because the perfume-making process uses certain methods so that it can produce a distinctive fragrance, is kept confidential and has economic value, perfumes can be protected under various intellectual property rights (IPR) groups, including:
1. Patent
The point of a perfume that can be protected in the Patent Law is not the fragrance of the perfume itself, but the method used to create the scent.
However, not many perfumers are willing to protect their products through patents because they have to disclose the production process of the perfume, which is another requirement in patent protection. Also, in the future, other parties can use the method to make their own perfume because patent protection is only valid for 20 years.
Moreover, it is not easy for a perfume to obtain protection under the Patent Law because the law requires novelty in solving problems in perfume manufacturing and its application in the industry.
2. Trade Secret
Another solution to protect perfume is through the Trade Secrets Act. Again, the subject of protection is not the perfume, but the ingredients used to compose the perfume. Just like the famous soft drink brand Coca-Cola, the recipe is closely-guarded. What is protected is not Coca-Cola itself, but the ingredients that create the taste of Coca-Cola.
In order to obtain trade secret protection, the ingredients that make up the perfume must be kept confidential and, of course, have economic value. In essence, the ingredients that make up the perfume should not be known to the public.
3. Trademark
Another option for protecting perfume products is through trademark protection. Unlike the previous explanation, what is protected here is the brand, logo and jingle of the perfume, for example the registered brand CHANEL N°5 or Miss Dior.
Thus, the owner of the mark may prohibit others from using the mark without permission. They have full rights to the use of the mark.
4. Industrial Design
Another form of protection that can be given to a perfume product is the design of the product or perfume bottle through industrial design protection.
Industrial design protection can be given to unique perfume bottles, which refer to a combination of shapes, compositions of lines or colours which can give an aesthetic impression.
Some examples of protected perfume bottles are the Lancôme Magnifique and Lancôme Idole bottles.
Does selling inspired perfume violate any legal provision?
TFR interviewed Intellectual Property Lecturer from the Faculty of Law, University of Indonesia Angga Priancha.
Angga said that if someone sells a perfume that smells like an existing perfume, but uses their own trademark and never mentions another trademark in their promotion, for example, "Our perfume is similar to CHANEL N°5," then that person does not violate the law.
The reason is, "The focus of identification is the brand". Why brand? Angga said, "It is difficult to fix a perfume because it is volatile, depending on the temperature and storage space." Therefore, in current legal practices, many businesses use the Trademark Law as a medium of legal protection for their perfumes.
Lain halnya jika dalam mempromosikan produknya, seseorang tersebut dengan terang-terangan menyebutkan, “Parfum kita mirip loh sama CHANEL N°5. Beli ya, Kak,” maka orang tersebut sudah melanggar hak merek dari Chanel. Mengapa? Karena hanya orang yang memiliki hak atas suatu merek yang dapat menggunakan merek tersebut. Oleh UU, ia diberikan kewenangan untuk melarang orang lain menggunakan mereknya.
It's different if in promoting their products, someone is openly mentioning "our perfume is similar to Chanel 05. Buy it, sis", then that person has violated the brand rights of the Channel. Why? Because only people who have rights to a brand can use the mark. By law, they are given the authority to prohibit others from using their mark.
Angga further explained, "In the future, the question will arise, is this perfume produced by Chanel as well?"
This form of promotion is likely to cause confusion for consumers regarding the origin of an item. "Things like this make consumers confused and blur the distinguishing power of registered perfumes," he explained. This also gives the impression of free riding on the reputation of a well-known brand which is often the case nowadays. For example, in the case of a trademark dispute between DC Comics and PT Marxing Farm Makmur, which fought over the mark Superman.
DC Comics has registered the mark Superman in various countries. When they wanted to register the mark in Indonesia, they were rejected. That is because the Superman wafers have been traded and registered first. In one of the points of the lawsuit, DC Comics' legal representative explained that the registration was carried out in bad faith and also piggybacking on the fame of DC Comics' Superman brand.
Such conditions will be further aggravated if the perfume is intentionally made to resemble other perfumes, ranging from packaging and aroma to name. This will lead to criminal sanctions as stipulated in Article 100 paragraph (1) of the Marks and Geographical Indications Law as a form of trade of counterfeit products.
This provision prohibits any person who without permission from using the same mark in its entirety with a registered trademark belonging to another party to sell similar goods (in this case perfume). Violators may be subject to a maximum imprisonment of 5 years or a maximum fine of Rp2 billion.