Introduction: The Rise of “Inspired Fragrance” Marketing 

The digital marketplace, especially Instagram and Facebook, have catalysed a new genre of fragrance marketing in India—olfactory comparative advertising. A growing number of perfume brands promote their products as “inspired by”, “renditions of”, or “similar to” globally recognised luxury fragrances, such as Bleu de Chanel or Dior Sauvage (these are our primary anchor examples for the discussion ahead—solely due to their wider popularity).  

Unlike traditional counterfeits, these products typically:  

  • Avoid copying packaging, logos, or trade dress 
  • Use distinct brand identities 
  • Price themselves significantly lower than luxury originals 

However, they frequently rely on explicit verbal references to well-known perfumes, sometimes even adopting truncated or modified names, such as “Sovage” or “Bleu de”. 
This raises a complex legal question:  

To what extent can a brand reference a well-known fragrance in advertising without infringing intellectual property rights under Indian law?  

The Legal Framework Governing Comparative Advertising in India 

1. Statutory Basis: Trade Marks Act, 1999 

 The starting point is the Trade Marks Act, particularly the following provisions therein:  

  • Section 29: extensively defines trademark infringement 
  • Section 30(1): provides exceptions (permissible use in comparative advertising) to trademark infringement 

Section 30(1) permits the use of another’s trademark if:  

  • It is in accordance with honest practices in industrial or commercial matters
  • It does not take unfair advantage of the mark  
  • It does not harm the distinctive character or reputation of the trademark 

This statutory carve-out forms the background of comparative advertising jurisprudence in India.  

The Delhi High Court in Havells India Ltd v. Amritanshu Khaitan (2015), stated that the primary objective of Sections 29 and 30 is to allow comparative advertising with an honest use of a competitor’s mark. ‘Honesty’ is measured against the reasonable expectation of relevant consumers of the advertisement. The nature of the goods advertised might affect the reasonable perception of what advertising is honest. 

2. Judicial Interpretation: The Puffery Doctrine 

Indian courts have consistently held that comparative advertising is permissible, subject to limitation. The courts distinguish between “puffery” and “misleading comparisons”.  
Puffery refers to exaggerated claims which are when received by consumers, are not taken literally by them. 

Misleading comparisons are drawn when such statements are made by the marketing enterprise that leads to deception or confusion amongst the consumers.  

In Reckitt & Colman of India Ltd v. Kiwi TTK Ltd. (1996), the Calcutta High Court laid down key principles:  

  • A trader may compare its goods with those of a competitor 
  • A trader may claim its goods are better 
  • However, it cannot denigrate or disparage the competitor’s goods. 

Similarly, in Dabur India Ltd v. Colortek Meghalaya Pvt. Ltd. (2010), the Delhi High Court emphasised that:  

  • Comparative advertising must be truthful and not misleading
  • Any exaggeration must fall within acceptable “puffery”.  

The Delhi High Court placed reliance upon Colgate Palmolive (India) Ltd v. Hindustan Unilever Ltd. (1999), wherein, the Supreme Court laid down the law for a fair comparative advertising. Referring to the same, the Delhi HC laid down the following guiding principles— 

  1. An advertisement is a commercial speech protected by Article 19(1)(a) of the Constitution 
  2. An advertisement must not be false, unfair, misleading, or deceptive 
  3. There will be grey areas that need not necessarily be taken as serious representation of facts, but only glorifying (puffery of) one’s own product 

Therefore, courts allow comparison until the point the competitor’s product is not disparaged, and the claims made are truthful—or at least not misleading to the consumers. Hence, in the fragrance market, saying: “inspired by Dior Sauvage” is qualitatively different from saying: “same as Dior Sauvage” or “better than Dior Sauvage at 1/10th the price”. The latter two may edge into misleading representation, especially if it implies equivalence. 

Although, the notable point is in most comparative advertisement cases, one product is being displayed as superior over another product present in the same market. However, in our fragrance discussion, the latter product is already the superior “supreme” product, which is being attempted to be replicated in its performative essence into an “inspired” product.  

The Olfactory Problem: Can Smell be Protected? 

1. Absence of Strong IP Protection for Fragrance 

Unlike traditional trademarks (logos) or trade dress (bottling/packaging), fragrance compositions themselves are weakly protected under Indian IP law:  

  • Trademark: the Trademark law in India requires “graphical” representation, which for olfactory products such as perfumes, is difficult to establish.  
  • Copyright: perfumes are generally not protected under Copyright law as “works” unlike other things that qualify.  
  • Patents: inventions are granted patents, and perfumes do not per se qualify as inventions unless the ingredients used to assemble that scent might have been invented, or the packaging/bottle used uses a completely new mechanism to apply the perfume unlike the usual spray or pour as we see today.  
  • Trade secrets: perfumes might be best protected as trade secrets, as their preparation methods and ingredients are the key to their “essence”.  

Therefore, this creates an “olfactory loophole”. Competitors can replicate scent profiles while avoiding infringement—so long as they do not copy protected identifiers.  

2. No Trade Dress without Visual Similarity 

Since most “inspired fragrance” brands—avoid similar bottles or avoid similar packaging—they typically escape trade dress infringement, which depends on likelihood of consumer confusion.  

Luxury brands invest in exclusivity—fancy bottling/packaging, exquisite storytelling, building and narrating a heritage all contribute to building a strong identity. Replicating the same is neither safe, nor necessary for the rendition makers. Renditions sell fragrances, while luxury brands sell experiences.  

Trademark use in Comparative Advertising: Where is the Line Drawn?  

1. Normative Fair Use v. Unfair Advantage 

Using another’s trademark in advertising is not automatically infringing. However, courts examine—purpose of use; extent of use; and impact on the trademark owner’s goodwill.  
For example: saying “inspired by Dior Sauvage”, “smells like Bleu de Chanel” is comparative advertisement, as they leverage the reputation of these brands, and help consumers identify the reference product. This is mostly non-confusing and used in referential manner, so long as the exact (or similar) mark, device, or name is not used. These brand names are used only as a description of the scent.  

However, using other brand names (“Sauvage” or “Bleu de”) especially ones of the cadre here used as examples, which have particularly become so distinctive in their specific class of goods (perfumes), does not remain normative use—and becomes appropriation. It is because—identical mark is being used, for the same class of goods, which is likely to cause consumer confusion.  

In Havells India Ltd v. Amritanshu Khaitan (2015), the Delhi High Court held that comparative advertising is permissible, but it must not mislead consumers or exploit reputation unfairly.  

In Glaxosmithkline Consumer Healthcare v. Heinz India Pvt. Ltd. (2010), the Delhi High Court held that in comparative advertising, price differential can be highlighted, as far as the advertisement is fair and non-judgmental. If the advertiser’s products are lower in cost, of course it would be highlighted as an advantage. However, care must be exercised to ensure no commercial injury is caused to the rival.  

2. Doctrine of Initial Interest Confusion   

Even if confusion is dispelled later, initial attraction using a famous mark can be problematic.  

In Kapil Wadhwa v. Samsung Electronics Co. Ltd. (2012), the Delhi High Court recognised that trademark law protects against unfair diversion of consumer attention.  
When this doctrine is applied to perfumes, using established brand names prominently in advertisement may draw consumers unfairly, even if clarified later. 

Modified Names and Partial Use 

One of the legally contentious practices is—using deceptively similar names or isolating a distinctive word from a well-known mark.  

1. Deceptive Similarity Test 

Under Indian law, infringement may occur if:  

  • Marks are phonetically, visually, or structurally similar 
  • There is a likelihood of confusion  

In Cadila Health Care Ltd v. Cadila Pharmaceuticals Ltd., the Supreme Court emphasised that even phonetic similarity can lead to infringement.  

Therefore, usage such as “Sovage” or “Blue de” are high risk usage as marks as they are likely to result (whether intended or unintended) in exploitation of distinctiveness.  

2. Well-known Trademarks and Dilution 

Luxury perfume brands often qualify as well-known trademarks. In ITC Limited v. Philip Morris Products SA (2010), the Delhi High Court recognised that even without confusion, use that dilutes distinctiveness can be restrained. 

Therefore, repeated reference to well-known trademarks especially as a marketing anchor may amount to unfair use or dilution.  

However, dilution may not only happen to well-known marks alone. There are multiple such brands in the perfume industry that fall in the luxury segment, however, do not enjoy wider popularity like Dior or Chanel, for example. A brand can be niche, serve a specialised limited number of consumer base and still have strong goodwill in that segment.  

For example: Maison Francis Kurkdjian is a luxury perfume brand known for its high-end artisanal fragrances, having limited distribution but strong identity.  

Advertising Language: The Most Critical Risk Factor 

This is where most brands either stay compliant or cross the line into infringement. The language used to advertise while referring to another brand altogether is exceptionally critical. If it is even one step in the territory of “consumer confusion”, “dilution” or “free-riding”, it will amount to infringement. 

Lakhanpal National Ltd v. MRTP Commission (1989) wherein it has been held that ‘when it is to be decided whether a particular act can be condemned as an unfair trade practice or not, the solution lies in examining whether it contains a false and misleading statement and its impact on a common man…a representation containing a statement apparently correct in the technical sense may still mislead the buyer by using tricky language.’  

Therefore, per our agenda, if an advertisement says, “imagine getting a Chanel or Dior perfume for only Rupees 999”, is likely to mislead a person into believe that Chanel or Dior are associated with the advertising brand.  

Further, the Consumer Protection Act, 2019 (CPA) might also be activated if the advertisement is found to be ‘misleading’ under the Consumer Law. The CPA prohibits false or misleading advertisements, and unsustainable claims by the advertising brand.  
Therefore, claims like— “identical scent”, or “lasts longer than Dior”, may attract liability before the relevant Consumer Protection Authority.

Passing Off: The Residual Remedy 

Passing off refers to a claim made by the holders of a trademark to prevent others from copying the mark, packaging, brand name, trade dress, identifiers—and presenting the copied goods and services as their own (others).  

Even if statutory infringement is not established, passing off may apply, if jeopardy is caused to/through:  

  1. Goodwill 
  2. Misrepresentation 
  3. Identity 

In fragrance advertising, misrepresentation may arise through suggested equivalence or association. However, where branding is distinct, or no consumer confusion exists, passing off claims become harder to sustain. 

The Supreme Court in Renaissance Hotel Holdings Inc. v. B. Vijaya Sai & Ors (2022) found that even if a company does not have a large physical presence in India, its global reputation can be protected. International trademarks can enjoy protection due to trans-border reputation. Applying the test of deceptive similarity, the Court emphasised evaluating similarity from the perspective of an average consumer. Adding a prefix does not necessarily eliminate confusion if the dominant part is copied.  
Further, priority of use and established goodwill are crucial in trademark disputes.   

International Comparative  

1. The United Kingdom  

Reckitt & Colman Products Ltd. v. Borden Inc. (1990) 

This case echoes cross-border reputation in a different sense. A predecessor of Reckitt & Colman had been selling lemon juice since 1956, using a plastic container in the shape of a lemon. Over time, an association between the packaging and lemon juice was built. In the US, Borden Inc.’s predecessor sold its concentrated lemon juice in a similarly (lemon) shaped container under its own brand and enjoyed popularity in the US. In 1985, after having been in the UK market for nearly a decade, Borden began selling its lemon juice in the same containers as used in the US. Reckitt & Colman filed a lawsuit for injunction against the American company.  

The House of Lords stipulated a standard to ascertain passing off (known as the trinity – also adopted in India):  

  1. Whether the packaging has become associated in minds of substantial numbers of target consumers specifically and exclusively with the product? (Goodwill) 
  2. Whether the packaging used by the defendants (Borden) amount to represent that their product is from Reckitt & Colman? (Misrepresentation) 
  3. Whether continuation of packaging supply by Borden shall mislead a substantial number of consumers in believing they are purchasing Reckitt & Colman’s brand. (Damage) 
2. The United States 

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council Inc. (1976)  

The Supreme Court of the United States (SCOTUS) held that “commercial speech” is entitled to the First Amendment (their version of Fundamental Rights; includes Right to Speech). However, should a commercial speech be found to be—false, misleading, unfair, deceptive, and proposed illegal transactions, the authorities shall be completely free to recall that commercial speech.  

3. The European Union 

Intel Corporation Inc. v. CPM United Kingdom Ltd. (2007)  

The European Court of Justice (CJEU) held that an existing “link” between the earlier reputed mark and the later mark must be ascertained considering:  

  • Degree of similarity between the marks 
  • Similarity/dissimilarity of goods/services 
  • Overlap of relevant public 
  • Strength of earlier mark’s reputation 
  • Degree of distinctiveness of the earlier mark 
  • Existence of likelihood of confusion 

Such link is created when the later mark “calls to mind” the earlier mark. However, a link alone is insufficient to prove infringement/dilution. Protection against dilution requires a substantive and realistic assessment of the connection and the harm, not a mere mental association.    

L’Oreal SA v. Bellure NV (2009) 

Bellure NV stated on perfume packaging that products were “inspired by” L’Oréal perfumes. The dispute concerned price comparison lists comparing L’Oréal originals with Bellure’s inspired products. 

The CJEU considered whether unfair advantage of a mark’s distinctive character or repute required proof of detriment. The Court examined the EU Comparative Advertisement Directive (EUCAD), especially comparative advertising limits. 

The Court held: 

  1. Once a public “link” is established, a third party may take unfair advantage even without detriment to the mark, its repute, or proprietor. 
  2. Unfair advantage requires a global assessment, including dilution or mark-tarnishing 
  3. Price comparison lists are comparative advertising. A trademark owner may prevent such use if Article 3a (1) EUCAD conditions are unmet. Presenting a product as an imitation of a well-known trademarked product is unlawful and unfairly exploits that mark’s reputation.” 

Conclusion: A Narrow but Navigable Legal Corridor 

Olfactory comparative advertising in India occupies a legally permissible but tightly regulated space. The guiding principle is clear—reference is allowed, exploitation is not. Therefore, brands may identify and compare, but must not dilute, mislead, or free-ride excessively. As the Indian digital marketplace matures, this niche is likely to become a litigation hotspot, particularly as luxury brands increasingly enforce their rights.  

Further, as spending power in the country increases, so does the desire and tilt of a sizeable portion of Indians towards luxury brands—including perfumes. One of the primary Unique Selling Points (USP) of luxury brands is their exclusivity, and while that may be maintained through their upmarket price-tags, sole fragrance-enthusiasts might also find solace in affordable versions of the reputable fragrances. 

As the comparison with other jurisdictions suggests, the US appears fairly liberal on the concept of comparative advertisement with certain conditionalities that shall cause detriment not only the mark or its proprietor, but the consumers at large.  
The UK approach on the matter appears to be the closest to the Indian approach—wherein it would not be inappropriate to say that judicially-development principles have been borrowed and applied. The EU, however, takes the strictest road with comparative advertisement which is indicative of how protective it is of the reputed marks and brands.  

Comparative advertisement is allowed, and for the most part, it is better for the consumers and the manufacturers—as competition remains alive, and options remain explorable. However, it is also important to safeguard a mark that holds significant reputation against unfair advantage and free riding. This is essential to protect and respect the cost and effort the brand might have devoted to build their reputation and identity.  

Although, a question remains—are luxury perfume brands even the true competitors of the rendition houses, due to the disparity between their target consumers?