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ECJ: Copyright protection for designs only possible to a limited extent

November 2019 - Intellectual Property. Legal Developments by MTR Rechtsanwalte.

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Although a pair of jeans may fit perfectly and look good to boot, this does not in and of itself confer copyright protection. That was the verdict of the ECJ in a ruling from September 12, 2019 (Az.: C-683/17).

According to the established case-law of the ECJ, an original subject matter constituting the expression of its author’s own intellectual creation can be classified as a “work” and enjoy copyright protection. We at the commercial law firm MTR Rechtsanwälte note, therefore, that designs can, under certain circumstances, benefit from copyright protection.

However, the ECJ has since set the bar high for designs to benefit from copyright protection in a recent ruling. The Court held that copyright protection may not be granted to designs on the sole ground that, over and above their practical purpose, they produce a specific esthetic effect.

The case before the ECJ concerned a dispute between two manufacturers in the fashion industry. One of the two producers accused the other of copying and bringing to market several of its jeans and shirts. The ECJ ruled that while it is possible for designs to be granted copyright protection as works, the protection of designs and copyright protection pursue different objectives and are subject to distinct rules.

It held that the purpose of the former is to protect subject matter which, while being new and distinctive, is functional and liable to be mass-produced. The protection only applies for a limited time and is not meant to excessively restrict competition. The ECJ went on to state that the duration of copyright protection is significantly greater and applies to subject matter that is capable of being classified as a work. Granting copyright protection to subject matter that is already protected as a design must not undermine the respective objectives.

The cumulative grant of copyright protection for designs is thus only possible within narrow parameters. The Court also noted that a design’s esthetic effect does not constitute a factor that is relevant to the determination of whether said design can be classified as a work. What does need to be demonstrated to this end is that the subject matter is identifiable with sufficient precision and objectivity and that it represents an intellectual creation of the author.

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