Smells as Property, Eggs as Billboards

I didn’t think I’d be writing an “Annals of Private Property #2” so soon, but it seems that the mad ingenuity of our commercial culture is relentless. Within the past few days, I’ve encountered two astonishing stories about the market culture invading new corners of our everyday consciousness.

The first story involves the ownership of smells. Yes, that’s the latest frontier. Reporter Elaine Sciolino reports in The New York Times (July 13) that French courts are grappling with the question of whether the scents of perfumes should be considered intellectual property. The issue arose in France because a perfumer with Haarman & Reimer sued to obtain royalties for her work in creating Dune, a best-selling perfume sold by Dior. The scent is a mixture of lily, wallflower and peony with ocean smells of lichen, amber and broom and — according to the company’s marketing, evokes “a feeling of serenity” and “an escape from the complexities of today’s competitive society.”

If that’s true, it seems as if one French court may have taken a huge whiff of Dune. The Cour de Cassation ruled against Ms. Basiri-Barbir and held that the fragrance of a perfume does not constitute “the creation of a form of expression able to profit from protection of works of the mind.” Unfortunately, the court’s ruling does not overrule other, conflicting cases decided by French courts, and so the ability to own smells (in France) remains an open legal question.

The leading case to the contrary involved a Belgium company, Bellure, that was supposedly producing counterfeits of best-selling perfumes made by L’Oreal. In January 2005, a different French court that held that because a perfume is like “the result of intellectual research by a composer,” it should therefore be considered “a work of the mind” protected by copyright law. Bellure was ordered to pay $2 million and destroy its alleged knockoffs.

Since the leap from owning perfumes to owning other smells is just a small hop, skip and jump, I wonder when someone will claim to own the scent of fresh air or strawberries. Don’t laugh. A few years ago, the European Court of Justice recognized “the smell of freshly cut grass” as a trademark when used in conjunction with tennis balls. And the maker of toner cartridges is trying to get a trademark for a lemon scent.

The second story of property rights colonizing everyday life is the story of EggFusion, a company that pioneered a technology that is able to etch advertising on eggs. As David S. Joachim reports in today’s New York Times, CBS plans to use the etching to advertise its fall television lineup with on egg etchings. A few samples: “CBS Mondays: Leave the Yolks to Us,” and “CSI: Crack the Case on CBS” and “Shark: Hard-Boiled Drama.”

My personal response will be to boycott any eggs that contain advertising. I may even “accidentally” smash a few of them in the store. Eggs are hugely appealing because of their natural ovoid simplicity. CBS ads on eggs are a form of corporate vandalization of a perfect product of nature, and an irritating intrusion on my mind-space first thing in the morning.

That, of course, is precisely why CBS jumped at the chance to make a deal with EggFusion and use eggs as ambush-billboards. “You can’t avoid it,” said the president of the CBS marketing group, George Schweitzer. “It’s unlike any other ad medium in the world because you are looking at the medium while you are using it.” Mr. Schweitzer has just given me another reason for avoiding CBS, and another reason to buy local organic eggs.