The foundations of the modern fragrance industry can be traced to fragrance producers established in the south of France during the sixteenth century. Through the nineteenth century, French flower farms, essential oil extractors, and manufacturers of branded fragrances, were family enterprises, and it was relatively easy for these businesses to maintain proprietary information about distillation techniques, the composition of branded perfumes, etc.
The inexorable consolidation in the fragrance manufacturing industry over the past century has resulted in an industry now dominated by a handful of large fragrance multinationals that are increasingly vulnerable to misappropriation of their intellectual property, and particularly of their fragrance formulas developed at significant expense. The itinerancy of perfumers today has engendered unease among these fragrance houses as to the security of their most valuable assets: formulas and other trade secrets that can now be readily obtained, copied, and shared by employees with access to relevant information stored on the company’s servers.
Even more disconcerting today to the fragrance industry is the potential of analytic technologies to reveal the chemical composition of fragrances. Unlike digital technologies that have similarly discombobulated the media industry because they enable surreptitious copyright infringement, chemical analytic technologies do not enable the illegal acquisition or distribution of intellectual property. In fact it is generally lawful not only to use these technologies to obtain the fragrance formulas of competitors, but also to use the acquired information to develop competing products.
Concurrent with the erosion of the fragrance industry’s trade secrets has been the increasingly widespread deployment of fragrances as a component of multi-sensory trade dress used to brand a wide range of commercial spaces including retail stores, cinemas, hotels, etc. This article proposes that while trade secrets underlying the creation of fragrances have lost much of their efficacy, trademark and unfair competition law may offer a hitherto mostly unrealized legal protection of the deployment of fragrances as trade dress. After considering the limited efficacy of copyright and patent protection for fragrances the article canvasses the growing use of fragrance as a component of trade dress, and the potential legal protection, and financial implications, of trademark and unfair competition law.