by Lígia Carvalho Abreu and Pamela Echeverria (2015)
Illustration “Fueguia 1833: When a Perfume is An Artistic Expression” by Catarina Pinto and Lígia Carvalho Abreu
The Fashion Industry is likely to find protection in intellectual property law and contract law. From brands and designs to trade dress, the industry is protected from the fierce competition to which creativity is involved. Fragrances and perfumes are no different from this and in the race to become ‘unique’, companies often find themselves wondering what the difference is between one fragrance and the other, or how it is possible that two fragrances created by two different companies can be so similar. Here is the crucial point: can we protect fragrances? Is it possible for a company to register a perfume? We think so, but whether the possibility is found within the copyright system or the trademark one, you will have as many solutions as legal systems on earth.
As a way of strengthening their trademarks, brand owners are educating consumers to associate non-traditional marks with the origins of products and services. As a result, trademark owners are expanding the scope of protection to encompass non-visual marks, like scents and sounds.
In Argentina, the trademark legal system is regulated by the law on Trademarks and Designations (Nº 22362), and it can be registered as a trademark to distinguish goods and services, therefore: one or more words, with or without meaning; drawings; emblems; monograms; engravings; stampings; seals; images; bands; combinations of colours applied to a particular place on the goods or their packaging; wrappers; containers; combinations of letters and of numbers; letters and numbers insofar as they concern a special design thereof; advertising phrases. All these relieve having distinctive capacity and all other signs having such capacity.
In that spirit, trademark law makes it possible to register not only traditional trademarks, but also non-traditional ones. For example, we can register a three-dimensional mark, a smell, a sound, and the shape of a product. And we can also register the name of a brand, a drawing, and the combination of colours in it.
Furthermore, in terms of perfumes, the trademark is represented as a valid option, as long as the fragrance has distinctiveness.
Nobody doubts the distinctiveness of a perfume that has been many years on the market and is associated with a powerful brand that has a long story behind it, such as Chanel Nº 5. And what about the case of fragrances created by recent companies? What makes those companies have distinctive fragrances suitable for trademark protection?
One of the most recent, innovative and extraordinary fragrance brands is Fueguia 1833. Created in 2010 by Julian Bedel and Amalia Amoedo, this Argentinian brand, like Chanel or Hermes, has its own laboratory to produce an author’s scents.
Hornero Perfume (Fábula Fauna Collection) Photo: Fueguia 1833
This type of trademark is defined subjectively and is therefore open to interpretation by consumers, including experts who publish their fragrances’ critiques in newspapers and magazines.
These are some of the uncountable comments about Fueguia 1833’s fragrances:
“An Argentinean niche perfume, individually wrapped and presented in handcraft Patagonian boxes, proved to be a treat in a toy store for the jury. This ultra-decadent bonbon for grown-ups, boasting a heritage, charisma and irresistible accord, simply melted their hearts. Julian Bebel is a true rising star in the heavenly fragrances skies” Elle Sweden Beauty Award 2014 winner [i]
“At Fueguia, a new scent lab and shop in Buenos Aires’s Palermo Viejo neighborhood, Julian Bedel creates candles, room scents and perfumes from 1000 different notes and a large helping of imagination” New York Times[ii]
“This fragranced atelier makes its mark with uniquely South American scents” The Financial Times [iii]
“The true luxury is the bespoke perfumery option, for which a dedicated perfumer helps you create a custom blend from over 1,500 different notes. The end result – a unique and individual fragrance – is packaged in a wooden box”. ELLE Canada[iv]
“This is so different from anything I’ve tried before” says a consumer about Fueguia’s Darwin Perfume[v]
“Very unique” exclaims another consumer about the Fueguia’s Alguen Suenã Perfume[vi]
“It’s difficult to describe Fueguia’s perfumes because of the rainforest and indigenous components used and found nowhere else. Then the musk rolls in and cools down the opening’s frenetic brilliance to a luminescent, persistent glow. I have never, never experienced anything like this.” explains another consumer about Lago del Desierto Perfume.[vii]
Consumers and fragrance experts are recognising that Fueguia 1833’s scents are not identical or similar to any existing trademark. For them, they are distinctive because they are discovering within the Fueguia 1833 bottle, the scents of plants which are being used for the first time as perfume ingredients, as well as different associations of scents.
For instance, native species from Patagonia such as the Coihue and Lenga are used in the fragrance Lago del Desierto to better give us the smell of this Patagonian ecosystem. A Pink pepper growing 6000 meters high in the Andes found in the perfume Zonda makes us smell the wind that descends from the Andean mountain range.
Altiplano. Photo by Lígia Carvalho Abreu. Zonda Perfume (Destinos Collection): Photo Fueguia 1833
And the inspiration does not only come from Argentina. The Sudestada perfume blends notes of citron from the Argentinian province of Corrientes with those from the woods of Paraguay. The Agua Magnoliana fragrance gives us the smell of the Amazonian magnolia and the special perfume project Un Deux Trois has the scents of Yulan Magnolia blended with fresh notes of bergamot and orange blossom flower to give us the native vegetation of Taiwan.
However, Julian Bedel is more interested in following his imagination to create a unique scent rather than a massive selling fragrance. Fueguia 1833 produces scents that consumers may or may not find weird for a perfume. For instance, the special fragrance Équation blends notes of hot metal, purified carbon and ozone to evoke the smell of space. According to astronauts, it is a mix of “hot metal, barbecue -or Argentine Asado - and welding fumes”. [viii]
In this context and as a consequence of being raised from a human perception of odors, the argument will be that subjective views are inadequate when determining whether the scent functions as a trademark.
As Eleni Mezulanik expressed:
In some cases, consumers may associate a scent with a particular manufacturer or trademark owner. Taking into account the subjective nature of human perception and the potentially arbitrary nature of scents, another consideration for brand owners thinking about using scents as trademarks is that the scent on a product may alienate consumers if they consider the scent unappealing.[ix]
While scents have the ability to convey information through our olfactory system, the subjective interpretation of scents makes it less likely for them to achieve the status of trademarks.
As a result, many authors say that the future of olfactory depends on: the consumer’s problem of subjective interpretation and the impact it has on the distinctive capacity that every trademark must have as well as on the ability to represent them properly and give a precise and graphical representation of the scent when filling an application form.
Justice Marcelo Wathlet states that these type of trademarks “need to be described in detail, which normally require that the applicant specify the chemical components of the fragrance.” [x]
At this point, the representation of the trademark itself in terms of the application form is important and sometimes represents a challenge itself.
In Argentina, trademarks last 10 years and can be renewed for the same period of time indefinitely, provided they were used in Argentina in relation to any product/service within the scope of any class coverage or as a part of the designation of an activity, within the five years preceding expiry. Using trademarks/the products within five years prior to expiration date is also required to avoid eventual cancellation actions.
When it comes to scent marks, they are one of, if not, the most difficult types of trademarks to represent graphically. Imagine how it is to describe and represent a scent in order to seek a successful registration in the trademark office.
In our opinion, scents or olfactory trademarks are not only accepted by the Argentinian legal system, but are also a valid and efficient way to distinguish one product from another, one company from another and last but not least, one trademark from another.
Summing up, hard work must be done to seek and properly develop a registration system for them, but, at the same time, they represent a new and innovative way of trademarks that constitutes the future of trademark law.
Another concern about the protection of fragrances by intellectual property rights is the appearance of undue monopolies in the perfume world. According to Professor Kamiel Koelman:
Most humans do not have a highly developed sense of smell and can only distinguish a limited palette of scents. Thus, different perfumes may readily be held to be alike, and infringements quickly found. As such, the protection of perfumes could undermine competition to an undesirable extent, allowing only a few perfumes to exist lawfully side-by-side.”[xi]
The few perfumes are those which are really distinctive and original.
Originality is a requirement for a fragrance to be protected by copyright. However, it is not difficult to find court decisions that deny copyright protection to perfumes scents. The French Supreme Court tends to considerer a perfume scent “the simple implementation of a skill” [xii] rather than an artistic creation, a work of mind with “a tangible form which is identifiable with sufficient precision to permit its communication” [xiii]. As a consequence, it cannot be protected by French Copyright Law. Perfumes are not on the copyrightable creations’ list of the French Intellectual Property Code (article L122-2). However, this list is not exhaustive which was leading to different positions from that of the Supreme Court. As stated by the Court of Appeal of Aix en Provence “the creation of perfumes – each with original identities – was akin to the work of an artist and, hence, covered by copyright law”[xiv] Originality, according to French case law, is the expression of the author’s personality and article L112-1 of the French Intellectual Property Code (IPC) expressly states that copyright protects the “rights of authors in all works of the mind, whatever their kind, form of expression, merit or purpose”.
In the XVIII century, Jean-Louis Fargeon, the perfumer of Marie Antoinette, described perfume as if it were a musical composition.[xv] In the XXI century Julian Bedel describes perfume as if it were poetry.
A Collection of books written by Julian Bedel’s ancestors Louis Bedel and René Bedel along with the Fueguia 1833 – Collection Perfumes Book. Quebracho Perfume (Destinos Collection) Photos: Fueguia 1833.
On the Yakeñ Perfume, he blends notes of paramela (Adesmia Boronioides), ambergris and senecio to represent: “The breath of a whale touching the skin of a Mapuche Indian in the cold forest”.[xvi] The Pampa Húmeda Perfume is “the fragrance after the rain, brought by the Pampero wind, erased the clouds and illuminated the infinite green prairie.”[xvii] The Quebracho Perfume: “The arrival of a horse after a journey through an endless path; the aroma of leather, smoke, meat and earth; the railroad tracks shining under a scorching sun”[xviii] The notes of bergamot, incense and cade in a bottle of Quebracho and the notes of eucalypts and rosemary from Pampa Húmeda are the scents of a Jorge Luis Borges’ poem:
The breeze blows hunches from the countryside,
Sweetness from the farms, memories from the poplars.
The paused living earth will tremble
Under the rigidity of asphalt;[xix]
Those tangible liquids are perceptible through senses and have a sufficiently permanent duration. The originality which is relevant for copyright protection over perfumes is not related to the unusual ingredients or different formulas or recipes. In order to be original a perfume must contain a scent different to others existing on the market and which does not replicate the exact smells of nature or things. And this originality is achieved by the perfumer giving their own twist to a smell.
Fueguia Lab Photo: Fueguia 1833. Complicated Premonition -Torso in a Yellow Shirt by Kazmir Malevich (1928-1932) Photo by Lígia Carvalho Abreu (Russian Museum, Saint Petersburg)
When Julian Bebel uses more than 130 natural identical molecules to those existing in nature to create the Suprematism Perfume, he is not replicating the exact scents found in nature. Inspired by Kazemir Malevich’s Suprematism, he creates the scent of an imaginary flower by “using the same ingredients that nature uses but in a twisted way” only based on his perception[xx].
He feels the beauty but does not “reproduce the beauty of reality, like a picture of Rembrandt could”, but rather only create it with feelings.”[xxi] For the Équation Perfume, Bebel imagined what could be the smell of the Via Lactea mixed with the woody aspect of the cabin’s interior in Kaluga where Tsiolkovsky is seen drafting his equation[xxii]. The theory of Tsiolkovsky and the Ethyl Formate, which is a molecule that gives the smell of rhum and the flavour of raspberries and aromatic carbons which is identified in Sagittarius B2, were the basis of his inspiration. To create the Darwin Perfume he imagined the smell of Darwin’s cabin from notes of grapefruit, vetiver and cedar. And he unmasks the scents of Jorge Luis Borges’ poems and stories from the notes used to create a collection dedicated to the Argentinian writer. It is a work of fusion between imagination and the olfactory scent along with Bebel’s personal imprint.
In this context, Fueguia 1833’s scents are ‘expressions of the author’s personality[xxiii] as well as ‘creative compositions’[xxiv]. And this can be perceptible through senses too.