It’s no secret that
Victoria's Secret has been filing a fair share of lawsuits recently. This
time, Victoria’s Secret and Bath & Body Works is suing Preferred Fragrance
and Fragrance Acquisitions for trade dress and trademark infringement of smell
alike perfumes.
The
legal dispute claims that Preferred fragrance violated some of the Victoria’s
Secret Fantasies collection of fragrances, by selling fragrances that resemble
the trade dress of some of Victoria’s perfumes. According to court documents it
has been reported that the company copied scents including Vanilla Lace,
Coconut Passion, Mango Temptation and Love Spell.
The
lawsuit alleges that the defendants "Defendants have intentionally
encroached on [Victoria's Secret's] rights in a concerted, ongoing attempt to
hijack the substantial brand awareness and goodwill associated with the
plaintiff's products and to cause confusion among the buying public,"
Preferred
Fragrance "the leading distributor of designer-inspired perfumes,"
has been subject to trade dress infringement cases in the past. In 2013, the
Goss-IPgirl noted here, Prada claimed that Preferred Fragrance copied its
perfume "Prada Candy."
As the Goss-IPgirl has noted before,
generally, it is not illegal to create or distribute smell-alike perfumes. In
terms of copyright, the chemical composition of perfumes is not treated as a
tangible form of expression to claim copyright protection. Instead, disputes
between the perfume brands and copycats are generally resolved by assessing
circumstances for trademark infringement, trade dress and or unfair
competition.
In this instance, from looking at the
court documents, some of the bottles or packaging of the smell-a-likes may well
be similar enough to those of Victoria Secret’s to cause consumer
confusion and the courts may take the
view that Preferred fragrance’s products are taking unfair advantage off the
back of the reputation of Victoria's Secrets. The plaintiffs are currently
seeking an injunction, the destruction of alleged competing product and
damages.
