French perfume giant, L'Oreal, lost in the Appeal Court today when they failed to prevent low-cost smell-alikes for trading on their name. The reason according to the three judges at London's Court of Appeal is that consumers were unlikely to
confuse genuine L'Oreal products with cheaper imitations, even if they smell
similar.
The smell-alike, Creation Lamis, is made in Dubai and being sold in discount stores and on market stalls for under 5 stg with slogans like 'Designer fragrance for a fraction of the price'; 'only your wallet smells the difference'; and 'the only difference is the price', the High Court a year ago and now the Appeal Court has found there was no likelihood of any confusion.
According to Reuters, one of the judges said in the latest ruling,
According to the results of a survey, most people knew they were buying smell-alikes, not theThe public are not stupid. It is not suggested that anyone ever thinks a 'replica' product of the kind with which we are concerned is the original. Nor is it suggested that anyone thinks a replica is anything other than a cheap imitation of the original or is likely to be of the same quality as the original, even though it may smell somewhat the same.
original, and the judges dismissed claims by L'Oreal that the products were being passed off as originals.'The mere fact that one product has a free ride on another does not necessarily found liability.'
The High Court did find there had been some trade mark infringement of packaging and the shape of the bottles. However the action was brought in 'passing-off' and it failed as L'Oreal's appeal was dismissed.
L'Oreal is to take the case to the ECJ, where it will argue that Creation Lamis has broken trademark laws.
