Perfume IP

The New York Times ran a story yesterday [reg/$$$ req’d] about intellectual property protection for perfumes, a subject on which I posted last week. There is already interesting comment on the story from both Frank Pasquale at Madisonian.net and Susan Scafidi at Counterfeit Chic.
The Times story also shows that the legal situation in France is even more muddled than I had indicated. There are two decisions on the issue of IP rights for perfumes, one going each way. Explains the Times:
[Last month], the Cour de Cassation [France’s highest court], denied the petition of a perfume maker, who claimed she deserved to continue receiving royalties from a former employer, even after she had been fired. The court stated, “The fragrance of a perfume, which results from the simple implementation of expertise,” does not constitute “the creation of a form of expression able to profit from protection of works of the mind.”
To confuse matters, a French court of appeals ruled the opposite last January, determining that a perfume could be a “work of the mind” protected by intellectual property law. It ordered a Belgian company to pay damages to the perfume and cosmetics giant L’Oréal, which sued it for producing counterfeits of best-selling L’Oréal perfumes.
[snip]
Under French law the high court does not function like the Supreme Court in the United States, so its ruling does not set aside previous verdicts and leaves the issue open to interpretation.
It’s a Split des Circuites!
These disputes also manifest another difference between IP law in the United States and France, beyond our treatment of perfume. In the US, the employee’s creation would almost certainly be a work for hire and the company would therefore own any IP rights in it anyhow. In France, because of the moral rights doctrine, the employee had a potential claim.