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Charles Cronin

The term ‘fragrance’ conjures up purely discretionary items like perfumes and scented candles, but, in fact, the fragrance industry touches thousands of other more utilitarian goods like detergents and personal care products. Like the pharmaceutical industry, it is highly innovative, with its principal companies developing hundreds of new fragrances annually. For centuries fragrance manufacturers relied on trade secrets to protect formulas and other proprietary business information. This protection was largely lost, however, in the latter half of the 20th century when chemical dissection technologies made it possible accurately and legally to reverse engineer the formulas of fragrances developed by competitors. In recent decades fragrance creators and manufacturers in Europe have attempted to protect against the copying of their fragrances by claiming they are copyrighted works of expression. These attempts have mostly foundered based upon courts’ skepticism as to whether copyrightable expression can be communicated by, or perceived from, fragrances. Given the dim prospects for protection under existing intellectual property regimes, does the fragrance industry now run the risk of self-cannibalizing unless it seeks sui generis legal protection for its intellectual property?