Copycat Scents: Original Perfume Brands Struggle Against Knock-Offs In Legal Grey Area

We all come across reels on Instagram selling cheaper knockoffs of perfumes from brands like Gucci, Dior, Victoria's Secret, and more—often sold with claims that major celebrities wear such fragrances. But this has left the original and authentic perfume brands in a bind.

In most countries, a graphic representation of a smell usually required a trademark, which proved challenging. The requirement to show a graphical representation was done away with later. But the scent of perfume may not stay uniform due to evaporation or other external factors. Additionally, individual perceptions about the scent of a perfume may also also differ. 

In fact, due to the challenges in registering scents, Chanel's application to register its scent was rejected, while a toy company, Hasbro, got formal recognition for the scent of its play dough product. 

As per JV Abhay, partner at Shardul Amarchand Mangaldas & Co., accepting a representation other than a graphical representation (like accepting samples of the perfume), can be an alternative.

Further, an internationally accepted classification of smells, as they exist for colour codes and musical notes, will facilitate registration of olfactory trade marks, he said.

Originals Vs The Copycats

In such a situation, avenues of protection for an authentic fragrance brand beyond scent trademarks will have to depend on its name, and possibly, the shape of the perfume bottle, as shape marks are also registrable in India, as per Ameet Datta, partner at, Saikrishna & Associates. 

However, this becomes tricky with simple or functional bottles, as per Safir Anand, head of department and partner at Anand and Anand and his colleague, Seher Anand.  

There could be another case in the making with derogatory use, according to them. 

The Delhi High Court recently ruled in favour of Coty Germany GmBH in a trademark infringement case against Xeryus Retail Pvt.

The court permanently banned two websites, perfumery.co.in and unboxed.in, from selling perfume tester bottles using the 'Calvin Klein' or 'cK' trademarks. Additionally, the court imposed a penalty of Rs 1 lakh (around $1,200) on the defendants, which must be paid to Coty Germany GmBH.

This case marks the first time an Indian court has examined whether the sale of perfume testers constitutes trademark infringement or passing off, Anand said.

Meanwhile, another avenue of protection that can be used by brands is to seek remedy for violation of one's trade secret, as per Datta. But this would only work if the copycat is linked to the original perfume manufacturer, and the violation claim could also be feasible if the manufacturer can demonstrate access to the recipe, he said. 

A trade secret is any confidential information that gives a company an edge over its competitors. This can be a secret about how the firm makes its products, what ingredients it uses, ways of quality control, or equipment designs. The recipes of Coca-Cola, KFC's blend of 11 herbs and spices, McDonald's Big Mac Special etc. are some of the well-kept trade secrets.

Currently, a bill on Trade Secrets exists in India, but it has not been codified yet. 

To successfully protect information as a trade secret, a company must be able to show that such information has an economic value and that the company has taken steps to maintain its confidentiality, said Swati Sharma, head of intellectual property at Cyril Amarchand Mangaldas.

The Road Ahead

While there is a lack of protection for smell in the express legal provisions of India, as per its Trade-Related Aspects of Intellectual Property Rights Agreement, the registration of olfactory marks is allowed. However, due to the challenges in representing or describing the smell properly, no such registration has been seen in the country. 

Indian trademark offices should follow the path of foreign jurisdictions, but also make sure that this protection does not serve as a means for the importation and monopolisation of ordinary or generic scents, said Datta.

India has been witnessing a trend wherein brands are making a conscious effort to protect their bottles as unique trademarks, which is one way to go about it, said Safir Anand.