Documenting Creative Stinks in Holland

In "Copyright in the Courts: Perfume as Artistic Expression?" (WIPO Magazine, September 2006) Professor Kamiel Koelman discusses a recent decision of the Dutch High Court where it stated that smells could, in principle and in general, be considered protected subject matter. "Dutch copyright law protects only against direct imitation," writes Professor Koelman. "But if there is a high degree of similarity, the alleged infringer is assumed to have copied the original, and has the burden of proving that he created his product independently."

His advice:

Document the development of your perfume extensively, just in case it happens to
smell like a fragrance that is already on the market. The documentation may help
prove that the similarity is coincidental. And if you stand on the other side
and sue someone else for infringement, it ensures that he has the burden of
trying to prove that you copied a pre-existing scent. The same applies if you
produce wines or run a restaurant. Be prepared for a competitor claiming that
you infringed his rights to the bouquet of his Grand Cru, or to the exquisite
smells of his culinary creations. Of course, for now this is necessary only in
Holland.