The essentials
A perfume in the European Union is protected on four distinct legal layers: trademark for the brand name and logo, registered design for the bottle and packaging, trade dress for the visual identity, and trade secret for the formula. Olfactory composition itself is not protected by copyright in the EU. The Court of Justice ruling in Levola Hengelo (Case C-310/17, 2018) confirmed that taste, and by analogy smell, lacks the precision and objectivity required because sensory perception varies between perceivers (Court of Justice of the European Union, 2018).
The United States adopts a similar position. A 2006 Dutch Supreme Court case had briefly suggested copyright protection in the Netherlands under Lancôme v Kecofa, but the CJEU interpretation now prevails across the EU and supersedes earlier national jurisprudence. Trademark, registered design, and trade secret remain the operative tools against copycat operations, with the European Union Intellectual Property Office (EUIPO) as the central registry for trademark and design filings.
Trade secret protection applies when a formula is obtained through improper means: theft, breach of confidentiality, or industrial espionage. The EU Trade Secrets Directive (2016/943) explicitly permits reverse engineering from a legitimately purchased product, so gas chromatography analysis of a retail bottle is not a violation. This boundary defines the legal space the contemporary dupe market operates within (European Commission, accessed 2026-05-29).
The four layers of legal protection
Trademark protects the brand name and logo. Registered trademarks for houses such as Chanel, Guerlain, or Maison Francis Kurkdjian prevent unauthorized commercial use. Protection covers product names such as No. 5, Shalimar, or Baccarat Rouge 540, and extends to slogans, stylized typefaces, and color marks where they have acquired distinctiveness. Ten-year renewal cycles under the EU trademark system and the US Lanham Act allow indefinite protection while the mark remains in commercial use.
Registered design protects bottle and packaging shape. The Guerlain bee bottle (1853, originally for L'Eau de Cologne Impériale), the Chanel No. 5 rectangular flacon, and the Diptyque oval label all carry design protection for up to 25 years (5 renewal periods) under the EU Community Design framework. Trade dress, recognized in both EU and US law, extends beyond registered shapes to the overall visual identity, including color combinations, layout conventions, and graphic elements consumers associate with the brand.
The Levola Hengelo ruling and its impact
The Court of Justice ruled in November 2018 in Case C-310/17 (Levola Hengelo BV v Smilde Foods BV) that the taste of a food product cannot be copyrighted because it cannot be identified with sufficient precision and objectivity to constitute a stable creative expression. A copyrighted work must be objectively identifiable; sensory experience that varies with the perceiver fails the test. The same reasoning applies by analogy to perfume composition.
The ruling reversed the trajectory of the 2006 Dutch Supreme Court decision in Lancôme v Kecofa, which had recognized possible copyright for the scent of Trésor. The CJEU position now governs all EU member states under the supremacy of European law, and several national courts have since cited Levola Hengelo in dismissing perfume copyright claims. Perfume composition as such is not protected by copyright in the EU.
The United States position
The United States has never recognized copyright for perfume composition. US copyright law under Title 17 of the United States Code requires fixation in a tangible medium, and scent does not meet this criterion under current US Copyright Office interpretation. The position aligns with the post-Levola Hengelo EU framework, creating a coherent transatlantic landscape for dupe producers and rights holders.
US protection operates through trademark (Lanham Act of 1946), trade dress (Lanham Act and Restatement (Third) of Unfair Competition), and trade secret (Defend Trade Secrets Act of 2016, with state-level Uniform Trade Secrets Act adoption in 47 states). The combination enforces against name and packaging copying but not olfactive reproduction. The L'Oreal v Bellure chain, originating in the UK and producing a 2009 CJEU ruling, showed that comparison advertising using a competitor's trademark can be restrained, but the underlying olfactive imitation remains lawful.
Trademark and trade dress in practice
Trademark enforcement targets dupe operations that copy brand names or use confusing logos. A product called Chanel No. 5 Dupe would face immediate infringement action. A product called White Floral Aldehyde would not, even targeting the same olfactive signature. A flacon shape copying a registered design infringes; a different silhouette containing a similar liquid does not. L'Oreal v Bellure clarified that using a competitor's trademark in comparison lists or marketing materials can constitute infringement.
Trade dress enforcement targets packaging and bottles imitating the visual identity. The Penhaligon's sculptural bottles, the Diptyque oval labels, and the Chanel No. 5 flacon all carry trade dress protection excluding direct visual imitation. Lattafa, Al Haramain, and Armaf design their own visual identity to avoid trade dress conflicts, producing in-house bottles that differ markedly from the references they target. This separation of olfactive imitation from visual differentiation is the operational signature of the Gulf-led dupe industry.
Trade secret and reverse engineering
The proprietary formula is protected as trade secret. The EU Trade Secrets Directive (2016/943) and the US Defend Trade Secrets Act (2016) protect the formula against acquisition through theft, breach of confidentiality, bribery, or industrial espionage. Protection lasts as long as the secret is preserved: there is no fixed term, but disclosure ends it irreversibly. Major houses restrict full-formula access to a handful of senior staff and store them in encrypted databases with audit trails.
Both frameworks explicitly permit reverse engineering from a legitimately purchased product. A dupe producer buying a niche bottle and analyzing its composition through gas chromatography-mass spectrometry (GC-MS) operates within the trade secret framework. The same applies to academic and journalistic analyses published in Perfumer & Flavorist, which routinely report partial reconstructions. This is why no major perfume house has ever successfully sued a Gulf-based producer for olfactive imitation alone (Perfumer & Flavorist, accessed 2026-05-29).
Sources
- Court of Justice of the European Union, Levola Hengelo BV v Smilde Foods BV, Case C-310/17, judgment of 13 November 2018.
- European Commission, Directive (EU) 2016/943 on the protection of undisclosed know-how and business information (trade secrets). Accessed 2026-05-29.
- World Intellectual Property Organization (WIPO), articles on intellectual property in cosmetics and fragrances. Accessed 2026-05-29.
- Basenotes, articles on perfume copyright and dupe-market legality. Accessed 2026-05-29.