Legal Protection of Perfume Industry in Saudi Arabia and the Challenge of Dupe Comparative Advertising
A Comparative Analytical Study
DOI:
https://doi.org/10.35246/hbr96f92Keywords:
Saudi IP Law, Dupe Perfumes, Reverse Engineering, Comparative Advertising, Unfair Competition, Fragrance IndustryAbstract
The global perfume market has recently witnessed rapid growth in imitation fragrances, commonly referred to as “dupes.” These products replicate the scent profiles of luxury brands through reverse engineering and attract consumers due to their affordability. However, they raise complex legal questions, particularly in the field of intellectual property. This paper critically examines the extent to which Saudi legal frameworks protect the fragrance industry under intellectual property law, including patents, trade secrets, trademarks, and industrial designs. It also assesses the effectiveness of these mechanisms in safeguarding the core element of a perfume: its scent.
The study further conducts a comparative analysis of how the United States, the European Union, and Saudi Arabia regulate dupe perfumes, particularly in relation to comparative advertising and consumer protection. It concludes that the Saudi legal framework is more closely aligned with the U.S. model than with the European approach. Under Saudi law, dupe perfumes are permitted as long as they are not counterfeit. Comparative advertising of such products is likewise permitted, provided that specific conditions are met.
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References
* The author is grateful to Dr. Michael Townsend, Dr. Abdullah Alkholi, and Professor Abdulhadi AlGhamdi for their thoughtful feedback on this Article.
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See AlGhamdi, Huquq al-Milkiyāt al-Fikriyah,126.
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The Gulf Cooperation Council Trademark Law, Royal Decree No. M/49, 1 Jumada al-Thani 1442 A.H. (January 14, 2021), art. 2.
GCC Trademark Law, Royal Decree No. M/49, art. 2.
GCC Trademark Law, Royal Decree No. M/49, art. 3; see also AlGhamdi, Huquq al-Milkiyāt al-Fikriyah, 286-294; Simon Geiregat, “Trademark Protection for Smells, Tastes, and Feels: A Critical Analysis of Three Non-Visual Signs in the EU,” IIC – International Review of Intellectual Property and Competition Law 53, no. 2 (2022): 219.
GCC Trademark Law, Royal Decree No. M/49, art. 20.
GCC Trademark Law, Royal Decree No. M/49, art. 42.
Ibid.
Olivia Su, “Odor in the Courts-Extending Copyright Protection to Perfumes May Not Be So Nonscentsical: An Investigation of the Legal Bulwarks Available for Fine Fragrances amid Advancing Reverse Engineering Technology,” S. Cal. Interdisc. LJ 23 (2014): 663.
Su, “Odor in the Courts,” 663; Abhijeet Kumar, “Protecting Smell Marks: Breaking Conventionality,” Journal of Intellectual Property Rights 21 (2016): 129; see generally Martin Senftleben, “Trade Mark Protection for Smells, Tastes, and Feels: A Critical Analysis of Three Non-Visual Signs in the EU,” European Intellectual Property Review 40 (2022): 56; Zyad Alqurashi, ʿUsus wa Mabādiʾ Ḥuqūq al-Milkiyyah al-Fikriyyah fī al-Mamlakah al-ʿArabiyyah al-Saʿūdiyyah [Translation: Foundations and Principles of Intellectual Property Rights in the Kingdom of Saudi Arabia], 2nd ed. (Dar Hafiz, 2023), 121
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See AlGhamdi, Huquq al-Milkiyāt al-Fikriyah, 239.
AlGhamdi, Huquq al-Milkiyāt al-Fikriyah,250; see also Delia Gervin, “You Can Stand Under My Umbrella: Weighing Trade Secret Protection against the Need for Greater Transparency in Perfume and Fragranced Product Labeling,” Journal of Intellectual Property Law 15 (2008): 315.
Margaret M. Donnelly, “Talking Scents: Copyrightability of Fragrance & Intellectual Property Protection in the Perfume Industry,” University of Richmond Law Review 58 (2023): 51; Leon Calleja, “Why Copyright Law Lacks Taste and Scents,” Journal of Intellectual Property Law 21 (2013): 1; Charles Cronin, “Genius in a Bottle: Perfume, Copyright, and Human Perception,” Journal of the Copyright Society of the U.S.A. 56 (2008): 427; Amara Lopez, “Digitizing Scent and Flavor: A Copyright Perspective,” Michigan Technology Law Review 26 (2019): 347; but see Thomas G. Field, Jr., “Copyright Protection for Perfumes,” IDEA: The Intellectual Property Law Review 45 (2004): 19.
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Su, “Odor in the Courts,” 663.
Roberts, “Dupes,” 94.
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Donnelly, “Talking Scents,” 58
Goolsby, “Have You Been Duped?” 73; Nolan, “How Intellectual Property Laws Allow for Fashion Dupes.”; Alexandra Adwani and Tilde Sinnerdal, The Rise of Dupe Culture: A Qualitative Study on the Construction of an Emergent Digital Consumer Culture (Master’s thesis, Lund University, 2024).
Roberts, “Dupes,” 94; Nicole Dunn, “A Dupe or Just Duped?: An Analysis of the History and Policy behind Counterfeit Cosmetics and Social Media’s Role in Perpetuating Its Sales,” Journal of Health and Biomedical Law 20 (2023): 92.
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Kaylene C. Williams and Robert A. Page Jr., “Comparative Advertising as a Competitive Tool,” Journal of Management Development and Competitiveness 7 (2013): 47; William L. Wilkie and Paul W. Farris, “Comparison Advertising: Problems and Potential,” Journal of Marketing 39 (1975): 7; Janina Rebecca Kauz and Johanna F. Gollnhofer, “The Power of the Unspoken: How Brands Implicitly Reference Specific Brands in Indirect Comparative Advertising,” Journal of Product and Brand Management 34 (2025).
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Ibid.
Dean K. Fueroghne, Law and Advertising: A Guide to Current Legal Issues, 4th ed. (Rowman & Littlefield Publishers, 2017), 158.
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Williams and Page, “Comparative Advertising as a Competitive Tool,” 47; Kauz and Gollnhofer, “Power of the Unspoken.”
Fueroghne, Law and Advertising, 158.
Ibid.
Fueroghne, Law and Advertising, 160.
Kajal Chandra and Anannya Gupta, “Comparative Advertising: Legality, Implications, and Need for Stricter Regulations,” Indian Journal of Law and Legal Information 14 (2021): 148; Uphar Shukla, “Comparative Advertising and Product Disparagement vis-à-vis Trademark Law,” Journal of Intellectual Property Rights 11 (2006): 409; Weronika Woźna-Burdziak, “A Practical Analysis of Comparative Advertising,” European Research Studies Journal 24 (2021): 1085; Williams and Page, “Comparative Advertising as a Competitive Tool,” 47.
Shukla, “Comparative Advertising and Product Disparagement vis-à-vis Trademark Law,” 409.
Ibid.
Roberts, “Dupes,” 94; Katya Assaf-Zakharov, “Non-Traditional Trademark Protection as (Non-Traditional) Means of Cultural Control,” in The Protection of Non-Traditional Trademarks: Critical Perspectives, ed. Irene Calboli and Martin Senftleben (Oxford: Oxford University Press, 2018), 362–384.
See Qiqi Lou, Consumer Confusion: The Sole Focus of Trademark Law (2024); Alexis Theoharidis, “The Devil Wears Dupes: Legal Implications of ‘Dupe Culture’ in the Fashion Industry and How Trademark Law Should Adapt,” Business, Entrepreneurship & Tax Law Review 9 (2025): 213; Lazaros G. Grigoriadis, “Comparing the Trademark Protections in Comparative and Keyword Advertising in the United States and European Union,” California Western International Law Journal 44 (2014): 149.
Ibid.
For purposes of this paper, the analysis of comparative advertising in the United States will be limited to the federal framework rather than state-level regulation.
16 C.F.R. § 14.15(b) (2024); Fueroghne, Law and Advertising, 156.
16 C.F.R. § 14.15(b) (2024).
Ibid.
Grigoriadis, “Comparing the Trademark Protections in Comparative and Keyword Advertising,” 149.
Ibid.
Donnelly, “Talking Scents,” 58.
Smith v. Chanel, Inc., 402 F.2d 562 (9th Cir. 1968); Grigoriadis, “Comparing the Trademark Protections in Comparative and Keyword Advertising,” 149.
Sherrell Perfumers, Inc. v. Revlon, Inc., 483 F. Supp. 903 (S.D.N.Y. 1979).
Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising, 2006 O.J. (L 376) 21; Directive (EU) 2015/2436 of the European Parliament and of the Council of 16 December 2015 to approximate the laws of the Member States relating to trade marks, 2015 O.J. L 336/1.
Directive 2006/114/EC, 2006 O.J. L 376/21.
Grigoriadis, “Comparing the Trademark Protections in Comparative and Keyword Advertising,” 149.
Ibid.
Roberts, “Dupes,” 94.
Ibid.
Grigoriadis, “Comparing the Trademark Protections in Comparative and Keyword Advertising,” 149.
Directive (EU) 2015/2436, 2015 O.J. L 336/1.
Case C-487/07, L’Oréal SA v. Bellure NV, 2009 E.C.R. I-5185; Grigoriadis, “Comparing the Trademark Protections in Comparative and Keyword Advertising,” 149.
L’Oréal v. Bellure, Case C-487/07, ¶ 49.
Ibid.
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