As autumn leaves start falling, it won’t be long before advertisements for luxury perfumes appear on our screens and social feeds as brands bid to capitalise on the gifting season. From Chanel, Dior, and Prada to Paco Rabanne and Burberry, each will share seductive imagery and imaginative creative concepts to tempt consumers into buying their fragrances.   

Perfume is big business, but protecting the intellectual property of signature scents is not straightforward. Here are some of the challenges and solutions for brand protection in the highly secretive scent world.

Protecting perfumes: trade secrets and copycat risk

A key challenge for fragrance manufacturers is that the formulas they use to create scents are not easily protectable via conventional IP mechanisms. In the same way that food recipe books themselves are subject to copyright, but nothing prevents someone from following the recipes in them and selling the result, perfume formulas that become public knowledge have little protection against rivals recreating their scent. Consequently, an attempt to obtain a perfume-related patent – either by claiming that the formula itself, or the way it is manufactured, is innovative – is not only technically challenging but is also a risk because it requires publication of the formula.

It is possible, but difficult, to register a scent as a trade mark. Hasbro managed to register the vanilla-cherry-salt scent of its iconic Play-Doh toy, for example. However, a key aspect of any trade mark is that it must not serve a functional purpose in the product. In the case of perfume, the scent itself is the product, which places a scent mark out of reach. 

As a result, the most common approach to perfume protection is by designating the formula as a “trade secret”. Coca-Cola’s drink formula and KFC’s blend of 11 herbs and spices are famous examples of trade secrets that have allowed their owners to achieve enormous commercial success, and fragrance companies seek to follow their example.

Trade secrets must be protected to preserve their commercial value and this can be achieved through various means, including:

• Non-disclosure agreements (NDAs) that must be entered into by business partners – such as manufacturers – who are granted access to the formula.
• Employee confidentiality clauses preventing employees from sharing the trade secret – even after employment is terminated.
• Physical and cyber security to ensure all records of the formula are guarded against theft or accidental loss.

The UK IPO has published a useful blog explaining the importance of keeping trade secrets secret.

There are new challenges to secrecy in the perfume industry, however. Advances in scent analytics technology, specifically gas chromatography-mass spectrometry or GCMS, have made it possible for third parties to analyse the chemical composition of perfumes to determine what is in them and in what approximate proportions, effectively uncovering the secret formula. The scent can then be recreated and marketed as a “dupe”, often described as “inspired by” the original perfume. Dupes are typically offered at a fraction of the price of the original, and – as long as they are clearly labelled – there is currently no legal mechanism preventing their manufacture and sale.

Brand protection: selling more than the scent

Although it is difficult to protect the scent itself, there is still a great deal that perfume brands can do to build IP protection around their product that can also help defend against cut-price dupes.

Brand power: Creating instant customer recognition is the essence of strong brand power, and perfume companies are masters of the art. Striking imagery, innovative packaging, and distinct advertising tone make it clear to customers that they are buying more than a scent; they’re buying into Chanel’s sophisticated elegance, Jean-Paul Gaultier’s high-fashion flamboyance, or Marc Jacobs’ uplifting whimsical vibe. In this way, perfume selection is presented as a lifestyle choice linked closely to the consumer’s personal brand. An air of exclusivity aims to persuade consumers that buying the “real thing” is preferable to choosing a copycat scent. 

Trade marks: While the scent itself may be difficult to protect, the assets around it are not. Registering company names, fragrance names, and marketing taglines as trade marks is an important element of building a broader IP protection strategy. When trade marks are registered, consumers can buy with confidence that they are purchasing the genuine product. Fragrance houses are very active on trade mark registers, with Chanel alone having almost 600 marks either currently, or formerly, registered.

Registered designs: Product packaging is a pivotal part of the product experience when it comes to perfume. Uniquely shaped bottles and caps are designed to help the product stand out on the shelves and connect with consumers on an aesthetic level. From the classic block shape of Chanel No. 5, and its on-brand baby sister Coco Mademoiselle, to Jean-Paul Gaultier’s seductive torso-shaped bottle for Le Mâle, perfume-bottle design knows few bounds when it comes to creativity.  

By protecting bottle and cap shapes with EU Registered Design registrations, or shape trade marks, perfumiers can assert their authority on the market and prevent others from profiting from their creativity.

Brand protection and enforcement: Once the brand’s trade marks and designs are registered in all the necessary jurisdictions, the legal basis for brand protection is achieved. It is then the responsibility of rights owners to monitor the market for infringement and take action when it occurs. Where dupes are concerned, products should be monitored to ensure they are not copying packaging shape or design to the extent that the vendor is “passing off” the products as original.

Counterfeiting is a significant issue in the perfume market and can be a major risk to brand integrity, reputation and customer safety. Perfume brand owners must employ tactics to identify their products as genuine and monitor channels such as online and offline marketplaces to spot and stop counterfeit sales. Check out our blog on the risk of fake products for more on what brand owners can do to tackle fakes.

Building a suite of brand protection

Protecting a perfume brand, therefore, demands a broad approach to every asset associated with the product. Registering and maintaining protection for multiple designs and trade marks is essential, and something WebTMS IP management software can simplify.
Modules such as Trademarks and Case Management, which allow you to manage registrations for company names, fragrance names, and marketing taglines; the Registered Designs module, which tracks design registrations for distinctive perfume bottles; and the Document Upload and Storage functionality, which securely stores NDAs, certificates, and agreements — all work together to ensure you always have a complete picture of your IP protection status and any actions required.

Find out more about how WebTMS can help you protect your fragrance brand. Get in touch with our friendly team at [email protected]