I have a few updates to share with you regarding LVMH’s shutdown of the Monsieur Guerlain website and his associated social media accounts. Monsieur Guerlain has clarified a few points about the matter, I was given some information on Guerlain, and I’ve done some digging into the law. To me, those new facts indicate a very different situation both legally and factually than what I had initially thought. In my opinion, they demonstrate that the issue is not the trademark/copyright issue of using the Guerlain brand name that everyone had thought. There is much more going on.
[ADDITIONAL UPDATES regarding developments on 2/10 and 2/11 are posted in new sections at the end.]
First, though, I wanted to share something that I was told regarding Guerlain and its inner circle of perfumers. I’ve been informed by a reader that at least one prominent nose in the house had no idea that LVMH had targeted the Monsieur Guerlain sites for removal until the news broke on February 7th. It appears to have been as much of a shock to them as to everyone else.
This should underscore a point that I tried to make clear in my original post: it is LVMH that seems to have started this, not Guerlain, so it is LVMH that is to blame. It’s not a meaningless distinction, in my opinion. A lot of people are upset over the situation and quite understandably so; I share their frustration at the sheer idiocy and gracelessness on display. However, a few seem to have gone further in their outrage. Some people have written here that they have tossed (or completely smashed) their Guerlain bottles. Others have stated that they plan to put their fragrances up for sale.
I think that is such a pity. Those fragrances gave you joy and, I would venture to guess, many of them were originally created by the actual Guerlain family long before LVMH became a vampirical vulture that used 68 Champs Élysée as its personal golden cow to milk dry (and ruin). Any anger or disgust that you feel should be placed squarely on LVMH’s shoulders, but selling or smashing bottles isn’t going to impact them one whit. The sole reason I thought it was important to contact both companies was not because I blamed Guerlain but because I thought they were far more likely to be sympathetic and to convey the full scope of the situation to LVMH (which is not the easiest company to contact directly via a specific email address). Exert any pressure that you may think is necessary to get either company to understand the scope of your feelings and boycott LVMH and its subsidiaries if you wish, but don’t destroy what you once loved and found to be a source of beauty and pleasure.
THE LATEST FACTS & THE DMCA LAW:
Monsieur Guerlain has clarified several aspects of the situation. First, in a Basenotes discussion thread on the situation, he explained that he was never asked by anyone at Guerlain to change his website name or to remove any of the photos. Think about that for a minute: he’s had his site for something like ten years and not once did Guerlain or LVMH’s legal teams demand a name change or photo removal under trademark and copyright laws. However, they did express some concern that he was becoming too influential and that the large size of his following might lead others to think others to think that he was an official site. It turns out that was not the actual problem in this case but before I get to the actual trigger, let me say that I understand and sympathize with Guerlain’s concerns. Personally, though, I didn’t find Monsieur Guerlain’s sites to be confusing in terms of associations. His pages were always plainly captioned at the top with words that made the lack of affiliation clear. For example, his Facebook caption stated something like: “One man’s admiration for all things Guerlain. Calling all honey bees and Guerlainophiles.” It took me less than a minute the first time I saw it (and the posts below) to figure out that it was a fan site.
Still, the real issue seems to have been something else entirely: a mere link. The link from hell, the link that set the ball rolling until it went straight into authoritarian territory. What happen is that Guerlain asked him to remove a link that he posted to another site which discussed several upcoming 2016 new releases. And he did so.
I wrote to him to get confirmation of whether he complied with Guerlain’s request, and he said that he did so right away. He said that most of Guerlain’s issues or requests to him involved removing links, and that he was always happy to do so because he’d never want to hurt the company he loved so much.
But let me repeat the main point concerning the triggering incident in the case that started all this: he said he obeyed immediately and removed the offending link as they requested. In legal terms, he cured or remedied the problem. Yet, despite that, his sites were suddenly shut down a short time later. He stated on Basenotes: “a few days ago, after I simply posted a link to some other site revealing some of the Guerlain news 2016, I was shut down. Like that. No warning, no message from either Guerlain or Facebook.”
Cases like these are covered by the Digital Millennium Copyright Act (DMCA). What usually happens is that the online service provider receives a notice of an infringement claim under the DMCA or a part thereof called the “OCILLA.” This is not my area of law so I’ll quote what Wikipedia says in the article linked above:
OSPs [online service providers] must adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to alleged infringing material (or remove such material from their systems) when they receive notification of an infringement claim from a copyright holder or the copyright holder’s agent. OCILLA also includes a counternotification provision that offers OSPs a safe harbor from liability to their users when users claim that the material in question is not, in fact, infringing.
In a nutshell, the online service provider “must” remove the offending website but they can also give the alleged violator a “counter-notice” so that person has a chance either to defend themselves by showing the material is not an infringement or to remove it. The “counter-notice” doesn’t seem to be mandatory, but it is damn common because the law tends to prefer conciliatory, easy, fast dispute-resolution before one goes for the jugular with hardcore action. In this case, the “counter-notice” or C&D wasn’t passed along to Monsieur Guerlain by the social media sites for reasons that became clear to me later on, but at least now I understand why they acted unilaterally in pulling his sites as the first step.
Let’s go back to that offending link to the third-party site. Monsieur Guerlain obeyed Guerlain’s request immediately. But it seems someone must have gone ahead and filed the infringement notice anyway such that the online companies had to comply right away as well. So someone — I assume from LVMH — either didn’t care that he had fixed the problem or didn’t wait to give him the chance to fix it. They just went ahead and pulled the trigger on the notice.
What caught my attention on Wikipedia was something else entirely, the fact that mere links to another site might not be a copyright infringement in and of themselves. The law is apparently unsettled with regard to this issue, but Wikipedia lists two instances where courts found that using a mere link was a violation. Two very narrow instances, neither of which applies to Monsieur Guerlain’s situation:
Linking to infringing content 
The law is currently unsettled with regard to websites that contain links to infringing material; however, there have been a few lower-court decisions which have ruled against linking in some narrowly prescribed circumstances. One is when the owner of a website has already been issued an injunction against posting infringing material on their website and then links to the same material in an attempt to circumvent the injunction. Another area involves linking to software or devices which are designed to circumvent (digital rights management) devices, or links from websites whose sole purpose is to circumvent copyright protection by linking to copyrighted material.
Here, no-one had issued an injunction against Monsieur Guerlain to stop posting infringing material and, even if they had, he did not subsequently try to get around that injunction by removing the text and inserting a link to that same information elsewhere. None of that applies here. He had a link, he removed that link, end of story. The second situation — links to software and special devices to circumvent the law — obviously doesn’t apply here, either. In short, Monsieur Guerlain did not engage in either of the two, very narrow linking instances mentioned as being violations of copyright law. Yes, there may well be other narrow cases but, at the risk of sounding like a broken record, Monsieur Guerlain had already acted to remedy the problem. I’ll leave it to the intellectual property lawyers to decide whether his linkage was even a legal violation to begin with under the DMCA, but it seems to me that the question is not settled fully and clearly in LVMH’s favour.
Hard as it is to believe, it really does seem to have been a mere link issue that triggered the LVMH action after almost 10 years of ignoring his use of the brand name, of not demanding a change to the website, and not demanding removal of copyrighted photos. Honestly, I thought it was all ludicrous to begin with given the timeline and the totality of the circumstances, but the link issue seemed completely insane to me at first. They jeopardized a PR goldmine and a 10-year relationship with a fan site over a mere link? A link that was immediately removed by the ultimate super fan who would never want to do anything to upset his beloved Guerlain? And then LVMH still went ahead with a triggering infringement notice involving a grey area of the law that one can argue didn’t even apply to him anyway? Utter madness. Ruthless madness.
I have no idea what was mentioned on that third-party site because Monsieur Guerlain wouldn’t discuss it and avoided my questions on the subject. However, I suddenly remembered what I’d heard whispered elsewhere about Guerlain’s Aqua Allegoria releases. Allegedly, they were simply re-issuing old creations under a new name at a much higher price. In essence, an alleged sleight of hand involving new names, new bottles, new prices, but old juice. And my guess is that this must be the information that LVMH appears to have wanted squashed. A mere link to this — and solely the link as opposed to use of the “Guerlain” brand name — had to be the “copyright violation” at the heart of everything, because what else could possibly explain the course of events? For ten years, LVMH looked the other way and never once took action over the otherwise undisputed violations like the use of a brand name and photos, but a link to a 3rd party website suddenly leads to the complete shutdown of all MG sites even after remedial compliance?
I have no idea if the fragrance allegations are true. I don’t care. I barely tolerate modern, LVMH-era Guerlains as it is, but I intentionally avoid the seemingly never-ending army of insipid “Aqua A’s” with their fresh, watery, fruity-floral profiles. But even if the claims were true, so what? It’s not as though people wouldn’t find out anyway. The Guerlain lovers would notice and mention it. Perhaps LVMH was concerned about letting the cat out of the bag too soon, but that is irrelevant to the issues here: Monsieur Guerlain took down the offending link and they went after him anyway. Ten years of the most adoring publicity imaginable for free, and this is how they repaid him?
I have no doubt that some of you will think a mere link can’t possibly be the cause of all this kerfuffle, but Monsieur Guerlain’s brief comments on Basenotes point to it as being the likeliest scenario. When I wrote to him for confirmation on the removal issue, I asked him specifically what sorts of issues Guerlain had raised in the past as problems. He said they were typically linking issues, and he was happy to comply because he never wanted to jeopardize the Guerlain brand or its standing in any way. He gave me two examples of prior differences, both of which I thought were extremely trivial in nature:
A typical example of what they asked me to do: when L’Homme Idéal was released, there was a pre-release at airports. I managed to buy and smell it beforehand then. But Guerlain asked me to wait to write about it until the official press release date, and we agreed on that. That is a fairly typical example of how we got along. Another example: some journalist posting an image on Instagram before the official release, me linking to that image, Guerlain asking me to remove the link, and me afterwards obeying.
In both those instances, they asked, he complied, and everything was fine. Just like it should have been in this case. No wonder he didn’t receive a C&D “go fix it” letter; he already had fixed it. So why then did LVMH need to stomp their jackbooted foot against his neck and shut down all his sites? Who knows, but perhaps the real problem was the actual information itself and their wish to suppress it.
THE LARGER ISSUES:
To be completely frank, I now care far more about the larger implications regarding the dissemination of information than about Monsieur Guerlain’s plight. (My apologies to him). In particular, I’m troubled by the risk to information dissemination when it comes from mere peasants and peons like us as opposed to LVMH’s PR army. In the past, I’ve seen a few cases where Basenoters sniffed out upcoming launches and they posted all known information to start a discussion. In one instance, I remember someone came across a trademark name application for a Lutens fragrance and posted the information perhaps a full 7 or 8 months before its release. In another instance, someone was given news of Dior’s Feve Delicieuse and its notes prior to its debut. Dior is a company owned by LVMH. Are they going to try to clamp down on Basenotes members in discussing or linking to future LVMH releases? Or does this merely apply to alleged re-named oldies at a higher price?
How far will it go the next time around? Recently, LVMH sent Fragrantica a DMCA demand to take down one of their advertorial “upcoming new release”-type articles on Dior‘s Poison Girl. Fragrantica itself said nothing remotely critical because that is not their style, but I’ve been told by one member who read the thread that posters had plenty of scorn, mockery, and negativity for both the flanker and for Dior advertising campaign. (One image involved smoking.) In short, an upcoming new release was being criticized. Not in this case for possibly being an alleged old/new switcheroo, but for its very existence, essence, and promotion. Not long after LVMH sent a DMCA notice; Fragrantica took down its article; and all that criticism was wiped out. Opinions silenced.
[UPDATE added 2/13: There is a lot of information in the comment section below that demonstrates there was a third incident involving the suppression of information, this time at Parfumo, the German perfume website and forum, but this time it was self-censorship due to fear of reprisals and a shutdown by LVMH. I want to thank various readers for sharing the details, particularly the Parfumo posters who witnessed the situation first-hand and who either wrote to me privately or talked about the specifics here. I’ll summarize their conclusions here for those of you who lack the time to wade through 100 or so comments to find the information.
In a nutshell, the 3rd-party site to which Monsieur Guerlain linked and which started all the problems was Parfumo. Specifically, a thread in which various members concluded that one of the upcoming 2016 Guerlain releases was actually an old jasmine Aqua A. that was allegedly being issued under a new name in a much fancier bottle and at an astronomical new price. (Somewhere around €500, I’ve heard). It seems the Parfumo members made this deducation by comparing the note lists for the old Aqua A. to the one that Guerlain issued for the “new” fragrance. They didn’t base it on any purported “leaks” or proprietary, confidential, privileged information, therefore, but on their own conclusions and extensive knowledge of the Guerlain lines.
At some point in all this messy drama, I assume after Monsieur Guerlain’s website was removed, those critical Parfumo comments were removed by the site’s administrators and the thread was sanitized. One can only assume it was done out of fear of reprisals similar to what Monsieur Guerlain went through, though he didn’t “leak,” disclose, or do anything illegal under the law, either.
In American legal jargon, the outcome is evidence of what the courts call “a chilling effect.” (American law applies to this situation because the online service providers like Facebook, Google, and Twitter are all American companies.) The courts don’t like any action that would have a “chilling effect” on speech, whether it’s on the freedom of the press or otherwise. While the First Amendment only applies to government actions, the American Congress is so concerned about private companies abusing copyright and other laws to suppress consumer speech and negative criticism that they are trying to pass new protective legislation called The Consumer Review Freedom Act. (See, a January 2016 Washington Post article here, as well as further information here and here.) In the Parfumo case, it was the site administrators who removed the comments and opinions but the end effect is still the same: the suppression of information that was critical of LVMH/Guerlain and the silencing of consumer speech. It would never have occurred if there hadn’t been fear of what either company might do based on their actions elsewhere. — end update.]
It can be the start of a slippery slope when a $34-billion behemoth owned by the 13th richest man in the world uses its might to manipulate grey areas of the law in order to suppress information it wants hidden. I can understand a company’s desire to control its image and to limit less salubrious details, but the wholesale suppression of information or any discussion thereof is authoritarian, in my opinion. Unfortunately, LVMH has sunk so low in my estimation that I wouldn’t be surprised if this were the start of a new trend. Not against cheap knock-off bags in China or counterfeit Moët Chandon in Italy (all fully justified actions), but against online criticism of their products by mere mortals. After all, they just used their might to silence a super fan who had already knuckled under and compromised without a murmur, and to wipe out a whole Fragrantica article as well.
They might view their jackbooted extremism as “simply business” or justified as “brand protection” but I think it’s thuggish, not to mention pure censorship with implications that reach beyond Monsieur Guerlain. If you ask me, the storied house of Guerlain deserves far better. And so do all of its loyal admirers.
UPDATE 2/10/16 — LVMH’s RESPONSE:
LVMH has issued a response by way of a comment on its Facebook page to customer complaints in various posts. Less than an hour ago, they wrote:
LVMH Dear All,
Following the disclosure by “Monsieur Guerlain” of strictly confidential information that is prejudicial to Guerlain, we have reported this contentious content. The social media involved have made the decision to close the accounts of “Monsieur Guerlain”, in application of their internal procedures.
Guerlain believes strongly in freedom of expression, in respect for the law and in protection of intellectual property.
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I think their response is a red herring and attempt to obfuscate. Monsieur Guerlain did not disclose anything but a link. It seems to be Parfumo which disclosed the allegedly “confidential” information or, more specifically, members of the public who talked about upcoming new releases. Furthermore, that allegedly “confidential” information was conjecture that the aforementioned “new” releases were, in actual fact, repackaged old releases in more expensive form. Granted, the conjecture seems to have some basis in fact as opposed to mere fantasies pulled out of the ether, but the bottom line remains the same:
- it was consumer discussion regarding upcoming new releases;
- it was made on Parfumo;
- Monsieur Guerlain merely linked to said discussion; and
- Monsieur Guerlain then removed the link immediately upon receiving notice from Guerlain.
Monsieur Guerlain did not disclose the allegedly strictly confidential information except by way of a link. In a Reddit thread, a corporate intellectual property lawyer who is well-versed in DMCA and this area of law said: “If this is about ‘hotlinking’ then that is pretty much bunk. There is no viable theory of infringement via linking, under copyright or trademark, of which I’m currently aware.”
So, now we have:
- no discussion by Monsieur Guerlain in terms of actual text discussing how the upcoming fragrance releases may or may not be old goods in new packaging;
- no legal violation for “hotlinking” to Parfumo’s discussion because DMCA does not make such links actionable copyright infringement;
- and Monsieur Guerlain immediately curing any link problem by removing it.
Bottom line, LVMH’s response is a red-herring, factually inopposite, and legally weak. It also makes clear more than ever than information suppression was the goal. Judging by the shutdown of a mere link to the Parfumo’s thread and also the Fragrantica Dior Girl situation, they want to silence any consumer criticism. That makes LVMH’s claim that they are strong believers in free speech utter hogwash as well.
[UPDATE — evening of 2/11/16: Monsieur Guerlain’s Facebook page has returned! I can’t see his Twitter page at this time and his website is still offline, but I’m sure that will change eventually.]