The European Court of Justice has ruled in favour of L’Oreal, preventing Bellure from selling cheaper smells-like fragrances in look-alike packages with comparative advertising.
Lord Jacob felt that comparative advertsing was OK, but referred case to the European Court of Justice who ruled that “an advantage taken by a third party of the distinctive character or the repute of the mark may be unfair, even if the use of the identical or similar sign is not detrimental either to the distinctive character or to the repute of the mark or, more generally, to its proprietor”.
I have a problem with the ruling in that it lacks balance. It does not address the issue of when a fragrance should enter the public domain.
In Israel, scents cannot be trademarked, nor can bottle shapes unless ruled as having aquired distinction through use. They can be registered as designs though – but only for a limited period. This is because trademarks are supposed to indicate the source of the product, not protect the product itself.
If pharmaceutical compositions that are novel and inventive have a 20 year from inception / 9 year from commercialization limited monopoly, why should a scent be protected from copying indefinately? trade-dress and passing off is one thing, but here we are talking about smell-alike clones that are sold as such.
I am inclined to favor cheaper generics sold as such in much the same way as I favor non-branded jeans and supermarket brands of instant coffee or generic colas.
Trademarks are indefinately renewable, and so I find the European Court of Justice’s ruling lacks balance, and would be happy to see the Swedish Pirate Party trying to legislate a more balanced decision through the European Parliament.