Chanel prevailed in a trademark infringement suit against a group of companies doing business under the name “Perfume Collection Inc.” on Wednesday, April 13th, WWD reports.    Chanel alleged that Perfume Collection Inc. was illegally selling their perfume.

The perfume company reportedly sold multiple Chanel fragrances “without Chanel’s distinctive outer packaging.”  The suit went on to say that additionally, Perfume Collection Inc. offered items without the company’s tamper-proof outer cellophane shell.

A federal judge ordered that the defendants pay Chanel $10,000 in damages, and an additional $6,000, which is to be paid in $500 installments.

Brand Sense Partner, LLC., a brand marketing company, filed a lawsuit against Britney Spears and her father in Los Angeles on Wednesday citing breach of contract, fraud and deceit. Britney and her father, Jamie are accused of cutting the company out of a commission owed in deal made with Elizabeth Arden for the scent “Radiance”. Brand Sense and Spears made a deal in 2003 and just finished renegotiating. Brand Sense however, says the new contract violates the original cutting them out of their 35% commission on the fragrance line. They argue that Spears secretly went around them to make a deal with Elizabeth Arden and cut the company out of the deal. According to StyleList, “the company is seeking declaratory relief in excess of $10 million, as well as, compensatory and punitive damages.”  If you recall, Spears is still under a court ordered conservatorship which named her dad and an attorney in charge of her financial assets. She cannot be deposed or ordered to testify.

Shaoxia Huang, Shaoxiong Zhou and Shaowu Zhou are in a smelly situation. A federal grand jury indicted all three of them in Brooklyn this past Tuesday for trafficking counterfeit fragrances and conspiracy charges.  Huang and Shaoxiong Zhou were arrested in Las Vegas on March 2nd and have been in custody ever since. The three allegedly imported more than 37,000 cosmetic fragrances into the United States. The Justice Department believes that “the counterfeit perfume was manufactured in China and bore trademarks belonging to well- known  fragrance brands and were packaged in a manner likely to be confused for genuine fragrances sold under these well-known brands,”according to WWD. If the alleged counterfeiters are charged, they could face up to five years in prison on the conspiracy charge and 10 years for the counterfeit products charge. That’s not the end of their trouble. If convicted, they are also facing nearly 2.3 million dollars in fines each. Although many of us New Yorkers know that counterfeit “high end” perfumes are frequently sold on our streets, authorities say cosmetics are starting to surface. Companies such as MAC and Estee Lauder are starting to get ripped off as well. A Los Angeles airport confiscated over $112,000 worth of knockoff MAC and Estee Lauder products in February.

Beverly Hills is a famous name that has been exploited may times in the past. There’s the famous Beverly Hills Hotel, the film Beverly Hills Cop, the teen show Beverly Hills 90210, and finally the new Real Housewives of Beverly Hills.

The mayor of Beverly Hills  – Mayor Jimmy Delshad – announced last month that the city is going to lend its famous name and city logo to a line of cosmetics, starting with a Beverly Hills perfume priced at $120.  This is not the first time the city’s name has been used to sell perfume; there was Giorgio by design house Giorgio Beverly Hills, a popular seller in the 80s.  Beverly Hills has licensed their logo and name to a Swedish perfumer to create the scent on behalf of the city.

We know the habitants of this city love cosmestics, but why should the city start a line of perfume? The mayor is hoping to make some money to boost the city’s  budget since California has been badly hit by the hard times of the 2008 market crash. Beverly Hills has projected $500,000 in revenue over the next 5 years.

The city will have to wary of the legal complications to having their own perfume line. Counterfeiters love to knock-off perfumes – it’s easy and cheap. Maybe this perfume will get police enforcement in Beverly Hills to bust those counterfeit perfume vendors and get them off the streets. Secondly, the city should ensure that perfume has been tested for allergies or side effects. Perfume is protected by trade secret, so perfumers do not have to disclose what the ingredients are to protect their scents from counterfeiters. However, the ingredients can have bad reactions to people allergic to the products. The city might have some lawsuits on the way. Is $500,000 in 5 years enough to keep the counterfeiters away and pay off any people with severe allergies? This perfume idea might be the newest thing for US cities or another problem for Mayor Delshad to handle.

…if you’re Sean “Puff Daddy”/”P. Diddy”/”Diddy” (which is it these days, anyway?) Combs, that is.  As part of an effort to expand his empire and create a Bad Boy lifestyle, Combs’s Sean John line has released two fragrances: I Am King for men (narcissistic, much?) and Unforgivable for men and women.  Unforgivable. Oh, the irony…

On the left, Patti's work. On the right, Unforgivable. (boston.com)

A Massachusetts artist named Tom Patti has filed a copyright infringement suit against Combs alleging that the Unforgivable packaging is too similar to some of his works to be coincidental.  Patti’s glass sculptures, entitled “Compacted Gray With Clear and Ribs” and “Modulated Solar Air Frame” feature defined ridges and the same gray coloring as the Unforgivable packing.

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(Photo from Harper's Bazaar)

I got to thinking today about the difference between counterfeit handbags and counterfeit cosmetic products.  In my view, they are both equally reprehensible because a counterfeit, no matter what kind, takes advantage of someone else’s hard work and creativity.  As a student, I have learned that the law works in funny, nonsensical ways sometimes.  That’s part of the reason why I enjoy IP law so much; because it protects people’s efforts to be creative, productive members of our society and seeks to set it right when the fruit of someone’s labors have been stolen or imitated.  Sorry for the slight meta digression.

So, the policies at work concerning the illegality of all counterfeit goods may be the same, but are some cases more high stakes than others?

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Copyright in perfumes?

One of my really great ex-students, Lesley Portnoy, has written a piece with one of his partners at Baker Hostetler about using copyright to protect perfume scents.  They talk about the examples of European courts which have occasionally done this, and argue that there are lots of connections between the requirements of copyright and the nature of perfumes.  For example, they point out that perfumes satisfy fixation requirements, that they are original, they are works of creativity, and so on.  They also note that perfume houses can’t get trademark protection for their scents because of the functionality doctrine: the scent doesn’t function as a trademark, it is an essential feature of the product itself; hell, it is the product.  Thus, the Lanham Act won’t help.  As a result, they conclude that there is a gap in the protection of perfumes that we need to–and can–fill with the copyright system, and parfumeurs and parfumiers should use copyright more aggressively to protect their investment against smell-alike knockoffs.

The piece is well-researched, interesting, and seems compelling in its logic.  But as much as I like Lesley, the problem with the argument is that it’s just wrong.

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