Can you copyright a scent? It’s complicated

In a world where the travel industry has been upended by the pandemic, what should airlines do to get their business off the ground again? Singapore Airlines is pulling out the stops to navigate this turbulent landscape, launching a plethora of creative initiatives to lure nervous travellers back into the skies. Among these initiatives is a signature scent known as Batik Flora by Singapore Airlines.

Created in partnership with Singapore artisanal perfume label Scent by SIX, this scent includes floral notes from six flowers in SIA's iconic batik motif — aquatic ginger, common dianella, seashore purslane, simpoh lak, utania nervosa, and white kopsia. Batik Flora by Singapore Airlines will be progressively introduced at various touchpoints, and will also be available for purchase in the form of reed diffusers, pillow mists, and an eau de toilette fragrance.

It’s a canny move — with its ability to evoke memories and emotions, scent can be a very powerful branding tool. But interestingly, such olfactory creations occupy a nebulous space when it comes to copyright.

Perfume's ambiguous legal status

Can you copyright a scent? Well, it depends on who you ask. In 2006, French company Lancôme, which makes the perfume Trésor, claimed that Dutch company Kecofa’s Female Treasure perfume was an infringement of its copyright. The Dutch High Court ruled that a scent could be considered copyrightable, because it could be perceived, had an original character, and bore the personal stamp of the author.

One important factor in Lancôme’s favour was its extensive documentation of how it had developed Trésor. The Dutch High Court specified that the originality requirement did not mean that a product had to be absolutely new, but rather that the maker must have put some of its own creativity into it.

On the other hand, in 2013, the French Supreme Court refused copyright protection to perfumes, ruling that while designing a perfume may be a creative act, this originality cannot be communicated with specificity because scent is too subjective. In other words, the same scent can smell very different to different people. Of course, those who disagree with this perspective point out that the same subjective reception is also true of a work of literature or a piece of art.

The ambiguous status of scent as intellectual property means that it can be a tricky branding tool for brands premised on exclusivity, since its unauthorised replication may not always have clear consequences. In fact, perfumes in most countries are not protected by copyright or any other intellectual property law. Still, scent's intangible impact can be potent, and there is no denying that this elusive product induces intriguing debates about what artistry and originality really mean.