Suggestions protecting a fragrance product

[businessguy]

What is the name of your state? Florida

General information: Intend to sell a fragrance product nationwide (USA). The company and production will occur in the state of Florida. The product will be made of all natural ingredients and oils purchased from suppliers (hence no unique chemicals to patent or production processes). Product will have a distinct niche market and functional purpose (The purpose will not be medical or health related, negating FDA registration, etc.)
For the sake of discussion, lets say the fragarance allows those who smell it to increase their ability to smell better (detect odors, distinguish them, etc.) and we will sell to wine enthusiasts. This is not the actual product function or target demographic; but comparable.

I would like suggestions on how to protect such a product's "recipe" and niche; especially from copycat products. I am aware that a recipe by iteslef is not patentable, but there must be some way to protect our unique mixtures and their novel use in certain markets.

I have also postedthis question in the patent forum, but would appreciate suggestions on how trademark or servicemark registration could help me protect the use ofthe fragrance within its niche market. Again, with a simple "mixed" fragrance product my concern is copycats will appear once the product is succesful or in the market.

I greatly appreciate your ehlp and welcome any comments or ideas.

Thank you.

 

[quincy]

First of all, this is not an area of expertise for me, so I recommend you sit down with an IP attorney to see if any of my suggestions are feasible legally.

Fragrances cannot, right now at least, be copyrighted in the U.S. It is not an infringement, therefore, to manufacture a fragrance or perfume that smells like another one. Recently, however, L'Oreal won a copyright suit against a Dutch company for copying one of their fragrances, claiming their fragrance was "a work of art". Other countries are looking at this L'Oreal case to see if similar copyright infringement suits can be brought elsewhere.

Currently, most perfume suits are brought over trademark infringement, against companies whose perfumes not only smell alike but are packaged in a consumer-confusing fashion or using a consumer-confusing trademark. I read one person call it a "visual protection of olfactory creativity". The perfume, itself, however, is not protected from infringement. You are afforded some protection, however, by registering your trademark and copyrighting and/or patenting unique designs for the bottles and boxes.

A possibility that might also be explored is working on "trade secret" protection. A trade secret encompasses any formula, pattern, device, or compilation of information which is used in one's business. With confidentiality clauses in contracts of those who manufacture your scent, you may be able to claim trade secret protection for non-patentable and/or non-copyrightable aspects of your business, such as the formula for your fragrance and its uses in the marketplace.

There are also non-compete clauses that may be a possibility, where the contract prohibits disclosure of trade secrets if one becomes employed in a similar position with another company. Non-compete clauses are often unenforceable when they try to prohibit an employee from seeking employment in a similar field, but penalties for the disclosure of trade secrets can still be enforceable.

Wait for others to post and, again, seek out the advice of an IP attorney.

 

[divgradcurl]

The only way to protect the actual recipe is via a patent. Although a patent on a recipe like this is technically possible, it is extremely unlikely that such a patent would be granted.

Trade secret can protect your recipe from theft, but it cannot protect you if someone else figures it out on their own, or even reverse-engineers your recipe.

Trademark is your best bet, but not in the way you think -- the best way to protect something like this is to get your mark associated with the scent, so that consumers will want your version, and not a knock-off.