The trend of inspired perfume is mushrooming again in the community. Where inspired perfume itself can be said to be a perfume that has a scent that resembles or is most likely the same as the perfume that inspired it. Inspired perfume seems to be an alternative to getting perfume produced by luxury brands at a cheaper price. Inspired perfume is very easy to get and has mushroomed in the marketplace and social media with prices starting from only IDR 3,000. This has an impact on the development of the perfume industry lately which has increased rapidly, as well as the inspired perfume business. The market demand for perfumes that smell like famous brand perfumes at a more economical price is increasing, so business people are turning their brains to make dupes or imitations of what the public wants. So, what is the validity of the inspired perfume business in terms of the law? Is it allowed to sell perfume that has a similar scent to other perfumes, even marketing it by mentioning other brands as a comparison? So that you don’t get the wrong idea, let’s see the full explanation below!
Peek into the Inspired Perfume Business Opportunity
Previously, please note that according to the Big Indonesian Dictionary (KBBI), perfume is perfumed oil; fragrant odors in the form of liquids, solids, and so on; perfuming substances. Perfume is one of the beauty and fragrance products that has become an essential part of everyday life. Its ability to boost confidence, enhance mood, and reflect personality makes perfume a highly desirable item for many people. However, original perfumes from well-known brands are often very expensive, making them unaffordable for the majority of people. This is where the inspired perfume business opportunity arises. An inspired perfume is a perfume that is produced by taking the scent and characteristics of a famous brand’s perfume and presenting it in a more affordable variant. The main idea behind this business is to provide an opportunity for consumers to enjoy scents similar to their favorite luxury perfumes without having to pay a huge price. In addition, there are several reasons why this inspiration appeals to most people to make it a profitable business opportunity, including:
Affordable Price
One of the main reasons why inspired perfume attracts so much interest is because it is more affordable. Consumers can experience scents similar to expensive perfumes, but at a much cheaper price.
More Options
With inspired parfume, consumers have access to a variety of inspired scents from various well-known brands. This gives them the opportunity to try different scents without having to spend a fortune.
Good Durability
Many businesses that produce inspired perfumes have invested in technology and high-quality materials to produce perfumes that have good staying power, similar to real perfumes.
Wide Market
The demand for perfume continues to increase along with the growing concern for beauty and health. Consumers from different age groups and backgrounds have an interest in fragrance products, so the market for inspired perfume is vast.
Legal Protection of Perfume
Furthermore, regarding whether or not it is permissible to produce perfumes inspired by the scent of other perfumes, there are several things that must be considered, including:
Brand Rights
Goods traded by a person are attached with a trademark to distinguish them from other similar goods (Article 1 point 2 of Law No. 20/2016 on Trademarks and Geographical Indications (Trademark Law)). To obtain rights to a trademark, namely to use the trademark itself or to give permission to other parties to use it, the trademark must be registered (Article 1 point 5 jo. Article 3 of the Trademark Law). An application for a trademark may be rejected if the trademark is substantially or wholly similar to a well-known trademark owned by another party for similar goods and/or services (Article 21 paragraph (1) letter b of the Trademark Law). Well, what is meant by “similarity in essence” is the similarity caused by the dominant element between one trademark and another so as to create the impression of similarity regarding:
- Shape;
- Placement method;
- The way of writing; or
- The combination of elements, as well as the similarity of speech sounds contained in the mark.
For example, registering a perfume brand under the name ‘ESKADA’ with a font similar to the ESCADA brand logo. Not only in terms of font writing, the pronunciation of these two brands also sounds the same. So this must be avoided so that the trademark application can be accepted. Now, it is usually often found in promotional materials that the claim “Eskada Perfume inspired by ESCADA” is listed, this certainly has the potential to violate the economic rights of ESCADA brand owners. Because consumers who were previously ESCADA perfume users will switch to the ESKADA brand that has the same aroma, but at a much cheaper price. Thus, on the contrary, business actors avoid the inclusion of well-known trademarks owned by other parties in promotional materials, so as not to arise legal problems in the future and immediately register their own trademarks.
Trade Secrets
Perfume businesses certainly have trade secrets, which are information that is not known to the public in the field of technology and business, has economic value because it is useful in business activities, and is kept confidential by the owner of trade secrets (Article 1 point 1 of Law Number 30 of 2000 concerning Trade Secrets (“Trade Secrets Law”). The scope of trade secret protection includes methods of production, processing, sales, or other information in the fields of technology and/or business that have economic value and are not known to the general public (Article 2 of the Trade Secrets Law). However, such secrets can be transferred or assigned based on a license agreement (Article 6 of the Trade Secrets Law). Every perfume business certainly has a secret perfume-making component, which is a differentiator between the quality of the perfume offered and other perfumes that have similar scents. This is a trade secret that receives legal protection. So, if someone intentionally and without rights uses a trade secret, in this case if he knows the components of perfume making, then uses that information to produce a similar perfume, he can be sentenced to imprisonment for a maximum of two years and/or a maximum fine of IDR 300 million (Article 17 of the Trade Secrets Law).
Not a knock-off product
It is important to note that the products are not copycats of existing perfume brands. For example, the ESKADA perfume brand is made entirely from ESCADA perfume but alcohol content is added, so that the perfume content becomes more. Then the product is packaged as closely as possible to the ESCADA perfume brand and sold at a price that is cheaper than the original price. Trading counterfeit goods using a well-known brand violates Article 100 paragraph (1) of the MIG Law: Any person who unlawfully uses the same mark in its entirety as a registered mark owned by another party for similar goods and/or services produced and/or traded, shall be punished with a maximum imprisonment of 5 years and/or a maximum fine of IDR 2 billion.
So, is it okay to do Inspired Perfume business?
From the explanation above, it can be concluded that the act of producing perfume inspired by the scent of other perfumes may not necessarily be considered a violation if the business actor does not know the exact composition of the perfume used as inspiration, but only mixes the perfume composition himself to create a scent similar to the scent of the perfume that is the inspiration. But, it is different if the act is done to produce counterfeit perfume, such as using bottles, packaging, and names that are similar to other perfumes, so as to make other people mistaken, then this is against the law. As stated in Article 9 paragraph (1) of Law No. 31 Year 2000 on Industrial Design (“Industrial Design Law”) that the holder of an Industrial Design Right has the exclusive right to infringe upon any other person who without his/her consent makes, uses, sells, goods granted the Industrial Design Right.
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The holder of an industrial right has the right to sue any person who intentionally and unlawfully commits such illegal acts with a claim for compensation and/or cessation of all acts detrimental to the holder of the industrial right (Article 46 paragraph (1) of the Industrial Design Law).
KH Contact
How about KH Friend, now you certainly have a better understanding of the provisions regarding the inspired perfume business? Or are you still in doubt and need assistance in registering brands, patents, and legalities related to this one business? Come on, contact Kontrak Hukum immediately! As a digital legal platform, we have been trusted by more than 5000 companies in Indonesia in fulfilling their various business needs, ranging from legality, to registering intellectual property such as brands, patents, trade secrets, and industrial designs. To view information on services that suit your needs, please visit the KH Services – Starting a Business page. Or if you have other questions, you can also consult with us for free at Ask KH and via direct message (DM) to Instagram @kontrakhukum.
