The cosmetics industry has traditionally struggled to
obtain satisfactory intellectual property protection in a field
where counterfeits and knockoffs abound. Trademark law may
protect the advertising, name, and trade dress, but does not
(5) address the product itself. Patent law rarely covers makeup,
hair and body products, or fragrance. And traditionally,
copyright has been applicable only to text or artwork on the
packaging, not to the substance within the package.
Considering the vast resources that go into developing and
(10) marketing a product, the level of protection provided seems
One product over which litigation has become increasingly
common is perfume. Some believe that a perfume is a work
of art, and should be protected under the same standards
(15) that apply to literature, music, and sculpture. However,
those who favor protection only for a perfume’s scent, as
opposed to the formula from which it is made, or who
advocate no intellectual property protection for perfumes at
all, think that perfumes should not be compared to visual or
(20) auditory works of art, and should instead be looked at as
chemical compounds. One commentator has pointed out
that copyright is traditionally applied to immaterial works,
like the words of a book, as opposed to the paper on which
the book is printed. This argument has some merit, but
(25) becomes more muddled when perfume is compared instead
to copyrightable works like sculpture, in which the physical
embodiment is virtually impossible to separate from the
Companies producing and distributing perfume knockoffs
(30) typically market their products so as to stay just on the right
side of the law, while associating themselves as closely with
the famous original products as possible. They achieve this
through using product names and packaging that imitate
those of the original scent. By cutting through the
(35) technicalities that such companies use to maintain the
legality of their efforts, and addressing the fundamental
intentions and effects produced by their actions, courts can
provide greater protection for the intensive investment that
developing companies make to bring a successful product to
(40) the marketplace
. This approach seems preferable to the
potential chaos of attempting to extend copyright protection
to works perceived by olfactory means.
A)Courts will continue to extend intellectual property protection to perfumes.
B)There is no legal way to protect perfumes outside of intellectual property law.
C)Knockoffs of famous perfumes always infringe on the originals.
D)Critics are correct in likening perfumes to words on a page, rather than to sculptures.
E)Consumers are interested in purchasing knockoff perfumes.