Copyright. Can a smell belong to someone?

The case began with two perfumes. The first was Lancôme's Trésor. The second was Female Treasure, put on the market by Kecofa, a Dutch company. Lancôme argued that the smell of Female Treasure copied the smell of Trésor, and sued under copyright law.

The difficulty lay in the very first question. Copyright protects works: a poem, a painting, a piece of music. Can a smell be a work? It has no shape, no words, it does not keep still. It changes on skin and drifts off after a few hours.

On 16 June 2006 the Hoge Raad, the Supreme Court of the Netherlands, answered. It rejected Kecofa's appeal and upheld the judgment in Lancôme's favour, including the order that Kecofa hand over the profits made from the copy.

The scent is the work, the liquid is the carrier

The Court's reasoning rests on a neat distinction. The liquid in the bottle, with its chemical composition, is not the work. It only carries the work. The work is the scent: what human senses can perceive.

To be protected, that scent must have its own original character and bear the personal stamp of its maker. This is the same test Dutch law applies to every other kind of work. The Court did not create a special law for smell. It only said smell is not excluded from the start.

The ruling also drew some limits. What merely serves a technical effect is not protected. A perfume following an existing style or tradition does not lose its originality for that; yet resemblance to earlier scents does not by itself prove copying. In this case the Court relied on an expert analysis showing that Female Treasure reproduced the distinctive features of Trésor.

A question without a shared answer

The Dutch ruling is the ruling of one country. Across Europe the question of whether a scent can be a work has come before other courts, and not all of them have arrived at the same place. People in the trade still argue: is perfume closer to composition, or closer to skill?

Both sides deserve a hearing. Those who see scent as a work say a perfumer chooses and arranges materials as a composer chooses notes; the result carries a personal mark that insiders recognise. The other side worries that a smell is very hard to describe precisely, and without a precise description it is hard to know where the right ends. Someone could make a close smell by chance without ever knowing the other.

One point both sides accept: smell puts the law somewhere unfamiliar. The law is used to things that stay still so they can be pointed at. Smell does not stay still.

A volatile thing and the law of things

Penta reads Lancôme v Kecofa not as a win or loss between two companies. Penta reads it as a rare moment when a system used to paper and solid form had to look seriously at something that evaporates.

The Dutch answer has its own beauty. It does not require a scent to stand still to count as real. It accepts that what matters is what reaches the senses, not the formula in a notebook. In other words, the Court placed the person smelling at the centre.

Yet the question remains whole: can something that cannot be fixed truly belong to anyone? A scent leaves the bottle, clings to a coat, spreads through a room, lingers in a stranger's memory. The maker may hold rights over copies. The trace has already gone.

The exhibition Nez à nez in Lausanne in 2019 presented the scents of thirteen contemporary perfumers and named each of them, as we name a painter in front of a painting. That is another way to answer the same question: not by law, but by naming the maker.