JUDGMENT OF THE EUROPEAN COURT OF JUSTICE ABOUT COPYRIGHT PROTECTION ON DESIGNS

11 October 2019

The European Court of Justice (the Court), in its judgment dated 12.09.2019 recognized, that copyright protection can only be provided for original works, and left the concept of cumulative protection of designs.

The decision was taken upon the request of the Supreme Court of Portugal to give an opinion on the case between the Cofemel and G-Star Raw companies which are both operating in the clothing sector.

The Court stated that the designs can have the quality of works within the scope of the Copyright Directive, and that these designs could also benefit from the protection specially designed for designs under the secondary EU legislation, but only in certain conditions.

On the other hand, the Court decided that these two protections served different purposes. The protection provided for the designs aims to protect the subject that will be functional, and liable to be mass-produced besides being new and distinctive. Also, this protection is for the short term to ensure the return on the investment required to create and produce the subject of protection, and not to limit competition to an extreme extent.

Copyright protection, on the other hand, is protection for subjects classified as work, and the protection lasts in a long term. Therefore, the Court considered that the cumulative protection of a design under the copyright is only possible if the objectives served by these two protections are not undermined, and their effectiveness is not limited. Therefore, the cumulative protection of designs is specific to some situations.

Lastly, the Court pointed out that “aesthetic effect” is not sufficient to count design as work because the aesthetic effect is a subjective criterion that can vary from person to person. For the design to be included in the work category; there should be the existence of an objectively identifiable subject, and the creator of the subject should reflect the personality and choices into the work. Therefore, creating an aesthetic effect beyond practical purposes is not enough to be considered a work.

You can find the text of the press release here.

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Zumbul Attorneys-at-Law

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