Copy Right on Fragrances and taste - whether legally allowed? Legal position in WIPO, International Laws and Indian Laws.

The legal protection of fragrances and tastes under copyright law is a complex and evolving issue, both internationally and in India. Here's a detailed analysis:

International Legal Perspective

1. WIPO and International Copyright Law

The World Intellectual Property Organization (WIPO) administers international treaties like the Berne Convention, which sets minimum standards for copyright protection. However, these treaties primarily cover literary and artistic works and do not explicitly address non-visual or non-audible creations such as smells or tastes.

In a notable case, the Dutch High Court ruled that the smell of a perfume could, in principle, be copyrightable if it meets the criteria of originality and creativity. The court distinguished between the physical medium (e.g., the bottle) and the olfactory composition, suggesting that the scent itself could be protected if it is original and expressive. (WIPO)

However, this perspective is not universally accepted. For instance, the French High Court later rejected the notion that perfumes could be protected under copyright law, emphasizing that the law was not designed to cover olfactory creations. (WIPO)

2. Trademarks and Non-Traditional Marks

Internationally, some jurisdictions have explored the possibility of protecting non-traditional trademarks, including smells and tastes. For example, the European Union has provisions for 'smell marks,' allowing the registration of scents as trademarks, provided they can be represented graphically. However, this remains a niche area with limited global consensus.

Indian Legal Perspective

1. Copyright Law in India

Under the Indian Copyright Act, 1957, protection is granted to original literary, dramatic, musical, and artistic works. The Act does not explicitly mention smells or tastes, and there is no precedent in Indian law for granting copyright to such non-visual or non-audible creations. Therefore, fragrances and tastes are not protected under Indian copyright law. (The Economic Times)

2. Trademark Law in India

India's Trade Marks Act, 1999, allows for the registration of trademarks that are capable of distinguishing goods or services. However, the Act requires that a trademark be represented graphically. This requirement poses significant challenges for the registration of smells or tastes, as they cannot be easily depicted in a visual format. Consequently, such sensory marks are not recognized under Indian trademark law.

3. Practical Implications

In practice, this means that while the packaging, logos, and brand names of perfumes or food products are protected under Indian intellectual property laws, the fragrance or taste itself is not. This legal gap allows for the production of imitation products that replicate the scent or flavor of established brands without infringing upon intellectual property rights.

Comparative Overview

Future Outlook

The protection of fragrances and tastes under intellectual property law remains a contentious issue. While some jurisdictions have explored this possibility, global consensus is lacking. In India, the existing legal framework does not accommodate such sensory creations, leaving a gap in protection for creators and brands.

For businesses in the perfume and food industries, this means that while branding elements can be protected, the core sensory experiences of scent and flavor remain vulnerable to imitation without legal recourse.

As consumer preferences evolve and the importance of sensory branding increases, there may be a push towards revisiting and potentially reforming intellectual property laws to address these non-traditional creations. However, any such developments would require careful consideration of the implications for competition, innovation, and consumer rights.