Perfumery occupies a singular position within the luxury market. More than a product, perfume is a complex sensory construction, capable of translating identity and memory into an intangible experience. In recent years, the market has experienced significant growth, driven by Gen Z, who not only consume fragrances but also engage with the world of perfumery as content, aesthetic language and a form of entertainment.
From a legal perspective, however, this centrality contrasts with a structural limitation: Brazilian law does not recognise scent, in itself, as an object directly protectable under intellectual property rights.
This apparent gap does not mean an absence of protection. On the contrary, Brazil has developed a fragmented model in which different legal instruments operate in a complementary manner to safeguard the economic and symbolic value of fragrances. Understanding this framework is essential for luxury brands operating, or intending to operate, in the country.
The structural barrier: the impossibility of registering fragrances as trademarks
In Brazil, the trademark system is governed by the Brazilian Industrial Property Law, which requires that a distinctive sign be visually perceptible. This requirement, expressly set out in legislation, prevents the registration of olfactory marks, irrespective of any technical discussion regarding methods of representation.
Unlike other jurisdictions, where the debate centres on whether a scent can be represented in a clear and precise manner, Brazilian law imposes a prior, conceptual limitation. The protectable sign must be visual, which excludes fragrances, as such, from trademark protection.
In practical terms, this means that the core distinctive element of a perfume, its olfactory signature, remains outside the formal system of exclusivity.
Copyright: a theoretical but limited route
Considering this limitation, it is often questioned whether fragrances could be protected as intellectual works under Brazilian copyright law. Although the creation of a perfume undoubtedly involves creativity and technical expertise, the application of copyright law faces significant challenges.
These include the difficulty of classifying a fragrance as an artistic expression eligible for protection, the lack of fixation in a tangible medium, and its proximity to functional elements.
International experience reinforces this cautious approach. Isolated decisions, such as Lancôme v. Kecofa, which recognised copyright protection for fragrances in the Netherlands, have not become the prevailing standard and remain exceptional.
Similarly, in Brazil, the prevailing approach is to reject this route, limiting its practical relevance for the sector.
The core of protection: trade secrets, know-how and visual identity
In the absence of direct protection for scent, the primary legal mechanism for fragrances in Brazil lies in trade secrets and know-how. This regime protects confidential information with economic value, such as formulas, compositions and manufacturing processes. In the context of perfumery, this encompasses the work of perfumers, the selection of ingredients and the techniques used to create fragrances.
This form of protection is robust, but not without limits. Trade secrets do not prevent third parties from independently developing similar fragrances, particularly through reverse engineering. In other words, what is protected is the process, rather than the sensory outcome itself. This feature helps explain the proliferation of ‘inspired by’ perfumes, a phenomenon widely observed in the Brazilian market.
Given these limitations, legal protection shifts towards peripheral, yet strategically critical, elements such as the bottle, packaging, name and overall visual identity of the product.
These elements may be protected through trademarks, industrial designs and unfair competition rules. In Brazil, the concept of trade dress, although not expressly codified, is widely recognised by both doctrine and case law as a means of protecting the visual identity of products.
For luxury brands, this shift has significant implications. The value of a perfume ceases to reside exclusively in the fragrance itself and instead lies in the broader set of elements that shape its perception in the market.
Unfair competition and the rise of ‘dupes’
The absence of exclusivity over scent facilitates the emergence of similar products, often marketed as more affordable alternatives to luxury perfumes. From a legal standpoint, this practice is not properly unlawful. Brazilian law permits free competition, including the development of products inspired by those already available on the market.
Unlawfulness arises where there is a likelihood of confusion, undue association or parasitic exploitation of another party’s reputation, situations that fall within the scope of unfair competition. In this context, legal analysis tends to focus less on the fragrance itself and more on the surrounding elements, such as packaging, bottles, naming, communication strategies and brand positioning.
Regulatory oversight and transparency
Another relevant aspect is the role of the Brazilian Health Regulatory Agency (ANVISA), which oversees the regulation of cosmetics in Brazil. Although not directly concerned with intellectual property protection, regulatory requirements have an impact on the sector by imposing safety standards and, to some extent, transparency regarding product composition.
This may create tension with the logic of trade secrets, requiring companies to strike a balance between regulatory compliance and the preservation of strategic information.
Indirect protection as a strategic framework
The Brazilian experience demonstrates that the legal protection of fragrances does not rely on exclusive rights over scent, but rather on a combination of legal mechanisms that, together, safeguard the product’s value.
Within this model, agreements, confidentiality measures, brand management and control over communication play a central role. Legal protection thus becomes less dependent on a single right and more closely tied to a company’s ability to implement an integrated strategy.
For companies in the sector, the challenge lies not only in creating distinctive fragrances, but also in building a legal architecture capable of sustaining exclusivity, reputation and market value in an environment that is both competitive and inherently open to imitation.
At Stocche Forbes, Thiago Porto Ribeiro and Mateus Lino Ferreira advise Brazilian and international luxury brands, with a focus on business internationalisation, corporate matters, contract drafting and negotiation, copyright matters and design and trademark protection. They can be reached at [email protected] and [email protected].
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