Study Of Protecting Perfume By Unfair Competition Law

This article is to study how to stop the problem that perfume is utilized improperly.In this paper,the research object of "perfume" is specific to the perfume ingredientsand the gas molecules after volatilization in a bottle of perfume,rather than smell,aroma,aroma type or flavor.Fragrance mixtures and volatile gas molecules are defined by copyright law as intellectual achievements in the field of art.The "improperly utilizing perfume " behavior can be summarized as the improper use of perfume name and packaging behavior,the large reproduction of perfume mixture behavior and the combination of the above two kinds of behavior.This paper collects the relevant judicial cases of unfairly utilizing perfume,and analyzes the scholars’ views on the above-mentioned issues.The current judicial practice and scholars are all discussing from the perspective of whether perfume can satisfy the protection object under the copyright law,that is,whether perfume can constitute a work.This paper also analyzes whether perfume can constitute a work.In this paper,the expression of perfume is analyzed as perfume ingredientsand the gas molecules after volatilization in a bottle of perfume.Since encouraging creation and dissemination of works are the two major legislative purposes of copyright law,the expression must be able to be objectively perceived.This paper creatively proposed that since characteristics of perfume,its expression can not be objectively perceived,so it does not meet the legislative purpose of copyright law to encouraging the dissemination of works.Therefore,this paper holds a negative attitude to whether perfume can constitute a work.In addition to analyzing whether perfume could constitute a work,this paper also discuss whether perfume expression could be protected under trademark law,patent law and anti-unfair competition law.Under the trademark law,perfume ingredients are characterized as olfactory products;Under the patent law,perfume ingredients are characterized as new organic compounds and chemical compounds,and the extraction methods of perfume ingredients can be characterized as extraction and preparation methods.Under the trade secret system,the perfume ingredients is characterized as technical information.After analysis,trademark law does not protect perfume ingredients as products themselves;The extraction method of perfume ingredients is too simple,which cannot meet the requirement of "novelty,creativity and practicability" of patent law,and the single compound that meets the requirement of invention cannot constitute the perfume ingredients independently.The perfume ingredients can constitute a trade secret after meeting the requirements of "secrecy,value and confidentiality".However,because the gas chromatograph and other technological instruments make such trade secrets can be legally reverse-engineered as soon as they are listed,the trade secret system to protect t perfume ingredients has great limitations.From the perspective of the history of anti-unfair competition law development,anti-unfair competition law originally has the function of indirectly protecting the nonwork object by regulating unfair competition behavior,that is,this paper agrees with the view that anti-unfair competition law provides limited supplementary protection for the intellectual property rights under certain conditions.From the perspective of the legislative orientation of anti-unfair competition law,the adjustment of unfair competition behavior is the fundamental difference between anti-unfair competition law and other legal regulation scope,that is,anti-unfair competition law should adjust any unfair competition behavior,including the unfair competition behavior of perfume.Therefore,the anti-unfair competition law has the regulation justification for the improper behavior of perfume.This paper puts forward a new idea of regulating the improper use of perfume by applying the first and fourth paragraphs of Article 6 and the general provisions of Article 2 of Anti-unfair competition law.First and fourth paragraphs of Article 6 of the anti-unfair competition law shall be applied to regulate acts of confusion or misidentification caused by improper use of the name and packaging of perfumes.In view of the behavior of large copying of spice mixtures,this paper proposes that the free-riding theory should be applied to the general provision of Article 2 of Anti-unfair competition law.