“Smell-Like” Perfumes and the Law: A Trademark Expert’s Perspective on the Legal Risks of Scent-Based Marketing
- Kiratraj Sadana
- May 30
- 5 min read
If you’ve been on Instagram lately, you’ve probably seen ads promoting perfumes that boldly claim:
“Smells like Dior Sauvage”
“Inspired by Chanel No. 5”
“Your affordable Creed Aventus alternative”
These aren’t counterfeit products. They come in different packaging, have original brand names, and clearly do not try to impersonate luxury labels. But what they do subtly, yet powerfully, is borrow the scent identity of high-end perfumes and then market themselves using that association.
This rising category of "smell-like" perfumes has not only generated buzz but also legal concern. Are these businesses innovating, or are they just freeloading on the reputation of iconic brands?
From an Intellectual Property standpoint and through the lens of foreign jurisprudence there is more going on here than meets the nose.
What Makes “Smell-Like” Perfumes Legally Contentious?
The heart of the issue lies not in copying a trademarked name or logo, but in the advertising language used by these brands. While they don't label their product as "Dior" or "Tom Ford," they openly describe their perfumes as dupes or alternatives to these.
And therein lies the potential legal minefield.
These marketing references may not constitute outright counterfeiting, but they raise serious questions under:
Trademark Infringement (particularly Section 29(8) of the Indian Trademarks Act)
Passing Off
Unfair Competition
Let’s dive in.
Indian Law: Not Just About Names and Logos
Under Section 29(8) of the Trademarks Act, 1999, a registered mark is infringed if it's used in advertising in a manner that:
Takes unfair advantage of its reputation,
Is detrimental to its distinctive character, or
Constitutes unfair competition.
A dupe seller saying “Smells like Dior Sauvage” isn’t just being descriptive. They’re using Dior’s reputation to pitch their own sale. Even with disclaimers like “no affiliation,” the intent is commercial gain via brand association.
The Indian Courts have emphasized that “the more well known the trademark, the higher the burden on those who seek to use it.”
But how does this compare with global jurisprudence?
U.S. Law: The Lanham Act and Likelihood of Confusion
In the United States, trademark law under the Lanham Act (15 U.S.C. § 1125) protects against both confusion and false advertising. Comparative advertising is allowed, but it must be:
Non-deceptive
Not disparaging
Not likely to confuse consumers about the source or sponsorship
In Smith v. Chanel, Inc., 402 F.2d 562 (9th Cir. 1968), the Court held that a seller could legally say their perfume was equivalent to Chanel No. 5, provided the claim wasn’t misleading. However, this ruling is over five decades old and doesn’t reflect the heightened concerns over brand dilution that have since emerged.
Subsequent cases, especially under the Federal Trademark Dilution Act (FTDA) and Trademark Dilution Revision Act (TDRA), have held that even non-confusing use of a famous mark can be prohibited if it dilutes the mark's uniqueness.
So, while scent-based comparisons might once have flown under the radar, today's Courts are increasingly sensitive to the free riding concern—even if the consumer knows it's not the real thing.
EU Law: Free Riding, Dilution, and Fair Use
In the European Union, comparative advertising is governed by the EU Directive 2006/114/EC. While it allows honest comparison, the law prohibits:
Creating confusion,
Discrediting or denigrating a competitor,
Taking unfair advantage of the reputation of a trademark
In the landmark case of L'Oréal SA v. Bellure NV (C-487/07), the European Court of Justice (ECJ) ruled that a company selling perfumes that smell like high-end fragrances and advertising them as such was taking unfair advantage of the repute of the trademarks involved—even though there was no confusion.
The ECJ emphasized that reputation is a property right. Using it to boost your own sales, without licensing or compensation, is unfair advantage, plain and simple.
This case is especially relevant to Indian law because it directly addresses the core strategy behind smell-like perfumes: referencing the scent profile of another’s mark to sell one’s own.
The ECJ’s approach also moved beyond consumer confusion and focused instead on economic parasitism, a concept India has increasingly started to acknowledge under its own jurisprudence on unfair competition.
The UK Approach: Honest Practices in Industrial and Commercial Matters
Under the UK’s Trade Marks Act 1994 and retained EU principles post-Brexit, the test is whether the use of the mark is in accordance with honest practices.
If a dupe brand uses phrases like “smells like Chanel” in a way that misleads consumers into believing there is a commercial connection (even indirectly), that’s not honest practice.
In Interflora Inc. v. Marks & Spencer plc [2014] EWCA Civ 1403, the UK courts tackled issues of keyword advertising, ruling that even invisible uses of a trademark in online advertising could infringe if it suggested an economic link.
The implications? If invisible references like keywords can infringe, then visible and explicit comparisons (“inspired by X”) in the perfume industry are all the more suspect.
Where Indian Law Is Headed: Learning from Global Jurisdictions
Indian trademark law has increasingly recognized the importance of reputation-based protection, particularly for famous marks. However, as we do not yet have judicial precedent dealing directly with smell-alike perfumes, foreign jurisprudence serves as a critical guidepost.
A likely path for Indian courts is to follow the ECJ’s reasoning in L’Oréal v. Bellure:
Protect brand owners from free riding,
Recognize marketing association as a form of exploitation,
Move beyond confusion to assess economic harm
Final Thoughts for Businesses and Brand Owners
For Entrepreneurs:
If you’re in the fragrance business and relying on the “smells like X” strategy, understand the legal risks. Avoid:
Directly referencing famous trademarks
Using comparative phrases in product listings or ads
Packaging that resembles high-end products
Instead, focus on descriptive scent profiles (woody, musky, citrusy), building your own identity, and steering clear of brand associations unless you have a license.
For Brand Owners:
Start monitoring digital references to your trademarks, even if not used on packaging. Under Section 29(8) of Trade Marks Act, 1999 and global precedents, unauthorized comparative advertising can still infringe your rights.
Conclusion
“Smell-like” perfumes may not be fake, but their marketing tactics can still raise red flags. As courts across the world have ruled, from L'Oréal v. Bellure in the EU to Smith v. Chanel in the U.S., even suggestive use of a trademark for commercial advantage can cross legal lines.
India, too, is evolving toward a jurisprudence that protects not just the name of a brand, but the reputation, aura, and exclusivity it holds.
So, the next time you see an ad saying “smells like Tom Ford”, remember, it might be a budget scent, but it could carry a premium legal liability.
About the Author:
Kiratraj Sadana is a lawyer specializing in Intellectual Property and Technology Law, and the founder of Apar Law. He regularly advises on brand enforcement, comparative advertising disputes, and IP strategy in India.
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Smell-Like Perfumes: Legal Risks Under Indian Trademark Law
Explore the legal challenges of 'smell-like' perfumes in India, focusing on trademark infringement, passing off, and unfair competition laws.
Trademark Law
Perfume Dupes
Intellectual Property India
Passing Off
Unfair Competition
Olfactory Trademarks
Comparative Advertising
Fragrance Industry
Legal Analysis
Consumer Protection
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