AMSTERDAM, Netherlands (AP) – Like a rose, a perfume by any other name would smell as sweet. But actually selling a cheap knockoff under another name is a copyright violation, a Dutch court ruled.

Some hailed the decision to protect Lancome’s “Tresor” perfume with a copyright as “revolutionary.” But others called it a mistake to ban imitators, saying the move could rattle the global cosmetics industry.

The Dutch maker of cheap perfumes that lost the case, Kecofa BV, promised Thursday to appeal the decision to the Dutch Supreme Court and European courts.

France-based Lancome’s actions are “the equivalent of someone introducing a fancy strawberry jam and then trying to prevent anybody else from selling a cheaper version,” Kecofa spokesman Leon Meels said.

Until now, perfume makers have fought copycats by keeping their formulas secret or occasionally by patenting their chemical composition as an “invention.” But courts have held that scent itself is something that belongs to nature – not to any person or company – and is not copyrightable.

But the June 21 appeals court decision said “Tresor” was a distinct combination of ingredients “not only measurable by the senses but also, in the court’s judgment, concrete and stable enough to be considered an ‘authored work’ as intended in copyright law.”

In other words, the perfume is more like a painting than a product.

Lawyers for Lancome, which won the right to block imitators from marketing cheap knockoff versions in the Netherlands, hailed the ruling.

Some competitors and experts dismissed it as a mistake that could have grave consequences in an industry that racked up $208 million in retail sales in the Netherlands in 2003, according to the Dutch cosmetics industry group NCV.

Charles Gielen of the law firm NautaDutilh, which represents Lancome, said it was right that perfume should be considered a creative work.

“Paintings also are made of a mixture of colors, which are known components, and poems are made up of normal words,” he said. “It’s the combination that’s artistic.”

The court ruled that Kecofa, which makes a perfume called “Female Treasure,” had infringed Lancome’s copyright and must hand over all profits from the perfume since 1995.

“Female Treasure” is sold in the Netherlands for $5 to $7 for a 100-milliliter bottle – a tenth the cost of “Tresor.”

Thomas Field Jr., a professor at Franklin Pierce Law Center in New Hampshire and a former chemist, said the ruling could be “bad, bad, bad, from a public policy standpoint.”

“Where does it stop? Will new wines, or blends of spices and other condiments be copyrightable? If the law of the case stands, lawyers will be mining its golden ambiguity for many years,” he said.

A patent would be a more appropriate way for perfume makers to protect their products, he said. Patents grant exclusive manufacturing rights for 20 years, rather than the 100 years or more for a copyright.

The Dutch court relied heavily on the testimony of experts hired by Lancome whose chemical analysis showed that “Female Treasure” contained 24 out of 26 chemical elements in common with “Tresor” – swapping only musk for a cheaper substitute.

Kecofa had 70 employees and sales of $12.3 million in 2002. Lancome is owned by France’s L’Oreal, with 50,000 employees and sales of more than $17.2 billion in 2003.

Meels said Lancome’s chemical analysis was misleading, since most perfumes contain similar ingredients.

“We should have presented our own experts, but we didn’t have a lot of time to prepare and, to be honest, we underestimated how seriously the court would take their arguments,” Meels said.

He said the company’s profit margins are so small that the cost of paying an accountant to figure out its earnings from “Female Treasure” would likely be greater than the earnings themselves.

Gielen said Lancome – which sells seven other perfumes in the Netherlands – will now attempt to enforce copyrights on its other fragrances and against other knockoffs.

One copyright law expert, University of Amsterdam professor Gerard Mom, said that while perfume has never been granted a copyright before, other products – such as ornate chairs or stylized telephones – have been copyrighted.

But he said judges in other countries may reject the idea that a perfume is worthy of a copyright.

“Opinions about what art is are very subjective,” he said.

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On the Net:

www.lancome.com

AP-ES-07-22-04 1445EDT

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