The cosmetics giant L'Oreal won a four-year battle on Friday to protect the reputation of its luxury perfumes – brands such as Trésor and Miracle – against low-cost "smell-alike" imitations.
L'Oréal cannot stop third parties selling perfumes that smell like its own. Instead the company has succeeded in stopping imitators from advertising the similarities of their smell-alike products, which they sold at a fraction of the list price.
— The UK Court of Appeals has upheld a prior ruling from the European Court of Justice, but they weren't happy about it; read more at L'Oreal victory over protecting brands raises questions on free trade at the Guardian.
There’s at least two sides to this coin – as always.
First, L’Oreal, among other “Big Boys”, understandably has the right to the names of their own products. Thus, it becomes ethically ambiguous, at the very least, to advertise something by saying “Compare to Thierry Mugler’s Angel” or calling something “Pink Sugar Type.”
That being said, however, it would be difficult and problematic to market and sell these knock-offs without these kinds of indicators as to what the consumer is meant to be comparing to the dupe.
Only consumers with olfactive (i.e. physical) access and a decent nose would be able to recognize these products as being a same (or rather, very similar) scent for a much cheaper price.
Sure, testing might work in drugstores (though those knock-offs need at least fifteen minutes to breathe lest you be choked by whatever kind of noxious fumes they put in those “deodorants” and sprays), but testing won’t work well in an online store setting, where small companies make a living not only creating dupes, but putting your desired fragrance into any sort of product you want – like Earthen Treasures, for example.
There are companies on the other hand, like Make Me Smooth, who avoid actually naming the designer scent in the description of the relevant dupe, though manage with copy that is usually worded well-enough to figure out what fragrance is being cloned. (And their wonderful Angel Mist and scent menu with hundreds of smells was, before their current “move,” quite wonderful.)
After these ethical ambiguities in “dupes” are sussed out, the larger issue becomes apparent: How can we copyright fragrances? As noted in Chandler Burr’s “The Perfect Scent,” the first 1,000 bottles of any fragrance produced are snapped up by other fragrance giants to “shoot” into gas chromatography/mass-spectrometry apparatuses (for years now) so as to figure out the aroma chemicals, both name and quantity, used in any given perfume. Yes, there are “tricks” to get around it, usually involving adding minute quantities of natural ingredients which add a mind-boggling number of compounds to the perfume formulae. But, the point remains, any firm can (and often do, with minor “tweaks”) copy another firms fragrance, often in a short period of time.
Just think about it – L’Oreal might be getting upset with all of the low-cost designer-inspired perfumes out there, but Angel (most glowing example I can think of) is getting copied (and “tweaked”) many times over. But Mugler can’t do s**t about it because each of these copy-cats has a (slightly) different formula.
Thus, legal recourse can only be taken for copyright-infringement (i.e. “Compare to _____”) or exact duplication of formula, by percentage of each aromachemical. That being said, the latter type of lawsuit is impossible – all the copy-cat need do is remark how their fragrance uses .1% more Iso E Super and a fraction less Helional – rendering it markedly “different”, and they’ve won.
Because this battle cannot really be won legally, it rests on the shoulders of each fragrance firm and each perfumer to come up with their own standard of ethics regarding this practice. If you view perfume as art/design, and respect other artists/designers, then you’ll tend to stay away (or just be distantly “inspired” by) other perfumers’ work. But if the bottom line is all that matters, then this kind of duping, copy-cat-ing and “tweaking” will continue, as the market demands.
I don’t know if the two sides matter, in this case: this would seem to be a big win for L’Oreal and any other company that wants to shut down the low-end dupe business.
This is interesting. In france, perfumes cannot be protected under Intellectual Property, unlike other things like works of art and even fashion. The question has been raised several times, but I guess the consensus is that it is too hard to tell whether a perfume smells enough like another to be infringing. Much easier to go after a company for copying the bottle design/wrapping, etc;
In this case, at least, the restriction is simply on how the product is advertised.
Quite so. This part of the article in particular caught my attention:
“The court of appeal strongly favours freedom of speech, even if the reason for telling the truth is commercial gain.”
Freedom of speech is important, of course, and so is telling the truth. That’s why I think the ruling makes sense: the truth is that these products don’t smell like the fragrances they’re naming in their packaging and advertising. 😉
But note that “truth in advertising” doesn’t really have anything to do with the reasoning, it’s a trademark/copyright issue, pure & simple!
By which I mean that they’re not saying the point is that the fragrances aren’t as good as they ought to be, LOL…
My point exactly!!
(My point being that, while they might not be their point, it’s the truth.
😉 )
I’m not very supporting of companies making dupes of any kind, so for once I will be on l’oreal side.
However, as the court favors the “telling the truth” marketing strategy, I would be curious to know what would their take on nondisclosed reformulations, which in my opinion is a kind of fraud. I have thought of asking my national consumer association: they might have the means and expertise to do something about it…
All industries redesign/reformulate products…so far as I know they are not under any obligation to tell consumers how they’ve done so. Think of electronics, to take just one example…
I have to side with L’Oreal on this one. Companies such as L’Oreal spend enormous amounts of money to develop and promote a product and a name and to get them out there in the public eye. When the knock-off companies advertise their products as “similar to” whatever-big-name-they-are-trying-to-imitate, they are profiting from someone else’s time, money, and effort. In effect, the big companies subsidize the ones making the copycat fragrances.