The essentials
Olfactive property refers to the legal and editorial framework around ownership of a fragrance composition. In both the European Union and the United States, the dominant legal position is that olfactory composition itself is not copyright-protected, because scent lacks the precision and objectivity required for stable creative expression as defined in the Court of Justice ruling Levola Hengelo (Case C-310/17, 2018) (Court of Justice of the European Union, 2018). This single ruling now structures how every reformulation, dupe and homage is read in EU law.
Adjacent intellectual property protections apply. Trademark covers brand names and logos. Registered design covers bottles and packaging. Trade dress covers overall visual identity. Trade secret protects proprietary formulas against acquisition through improper means, although the EU Trade Secrets Directive (2016/943) explicitly permits reverse engineering from a legitimately purchased product. These protections govern the dupe market boundaries and shape what houses can and cannot enforce in court.
Editorial recognition of olfactive authorship operates separately from legal protection. Perfumers are increasingly named on product communications and treated as authors of their compositions, particularly in niche perfumery. This editorial convention parallels the legal framework without depending on it. The Société Française des Parfumeurs and the Osmothèque maintain authorship records that function as a cultural infrastructure of olfactive property (Société Française des Parfumeurs, accessed 2026-05-29), reinforced by community databases such as Fragrantica and Parfumo.
Defining olfactive property
The term olfactive property covers two distinct dimensions: the legal framework governing ownership of fragrance compositions and the editorial framework governing recognition of authorship. The two operate independently. A perfumer can be culturally recognized as the author of a composition without holding any legal copyright over the scent itself, just as a brand can hold strong trademark rights without owning the underlying olfactive idea.
The legal framework operates through several layers: trademark, registered design, trade dress, trade secret and unfair competition law. The editorial framework operates through author attribution in product communications, industry awards including the FiFi Awards from the Fragrance Foundation, and reference databases maintained by Fragrantica, Parfumo and Basenotes. Together they form a hybrid system in which legal enforcement and cultural recognition cover different aspects of authorship without ever fully overlapping.
The European Union position
The Court of Justice of the European Union ruled in Levola Hengelo (Case C-310/17, November 2018) that the taste of a food product cannot be protected by copyright because it cannot be identified with sufficient precision and objectivity to constitute a stable creative expression. The reasoning applies by analogy to perfume composition, since both rely on subjective sensory perception that varies with the receiver and the medium of diffusion.
The Dutch Supreme Court had briefly recognized possible copyright protection for perfume composition in Lancôme v Kecofa (2006), centered on the scent of Trésor. The CJEU position now overrides this earlier interpretation across all EU member states. Olfactive composition is therefore not copyright-protected in the European Union under current case law, and lower-court rulings that predate Levola Hengelo are no longer treated as authoritative by EU-wide commentators (European Commission, Directive 2016/943).
The United States position
The United States has never recognized copyright protection for olfactive composition. US copyright law requires fixation in a tangible medium of expression, which scent does not satisfy under current interpretation. The Copyright Office has not issued registrations for fragrance compositions, and no federal court has overturned this position despite recurring discussion in academic literature.
US protection therefore operates through trademark (Lanham Act), trade dress (Lanham Act and Restatement (Third) of Unfair Competition), trade secret (Defend Trade Secrets Act of 2016) and patent for novel chemical compounds used in the formulation. The combined framework protects the commercial identity and proprietary materials without protecting the scent itself, and houses litigating against dupe manufacturers typically lean on trademark and trade dress claims rather than any direct claim of olfactive ownership.
Alternative protections in use
Trademark protects brand names and product names. Registered Community designs and US design patents protect bottle shapes and packaging. Trade dress extends to overall visual identity including color schemes and characteristic graphic elements. These protections form the operational layer that brands rely on for enforcement against copycat operations, and a substantial share of legal action in the sector concerns packaging rather than composition.
Patent protection covers novel chemical compounds developed by perfumery houses including Givaudan, Firmenich, IFF, Symrise, Mane and Robertet. Captive molecules such as Iso E Super (Givaudan), Ambroxan (Firmenich, original patent expired), Hedione (Firmenich) and Cashmeran (IFF) were originally patent-protected and remain commercially associated with their developers. Patent expiration generally allows other producers to manufacture analogs, which explains why molecules that once defined a single house signature gradually become available across the wider market (Perfumer & Flavorist, accessed 2026-05-29).
Editorial recognition of authorship
Editorial recognition of perfumers as authors has grown substantially since the 1990s, particularly in niche perfumery. Houses including Frederic Malle, Maison Francis Kurkdjian and Le Labo systematically attribute compositions to specific perfumers in product communications. Fragrance databases including Fragrantica, Parfumo and Basenotes maintain authorship records as a cultural infrastructure of olfactive property, with discussion threads and edit histories that document how attributions evolve over time.
The Société Française des Parfumeurs maintains a roster of accredited perfumers, and the Osmothèque conservatory in Versailles archives historical compositions with documented authorship. These institutional infrastructures function as cultural-level olfactive property recognition without legal force but with substantial editorial weight, and they increasingly serve as the de facto reference point that enthusiasts, journalists and even brands rely on when authorship is contested.
Sources
- Court of Justice of the European Union, Levola Hengelo BV v Smilde Foods BV, Case C-310/17, judgment of 13 November 2018.
- Société Française des Parfumeurs, Perfumer accreditation and authorship records. Accessed 2026-05-29.
- World Intellectual Property Organization (WIPO), articles on intellectual property in cosmetics and fragrances. Accessed 2026-05-29.
- European Commission, Directive (EU) 2016/943 on the protection of trade secrets. Accessed 2026-05-29.