CJEU rules that copyright protection for designs only requires sufficient originality
Eleonora Rosati · Journal of Intellectual Property Law & Practice · 2019
Court of Justice of the European Union, Cofemel – Sociedade de Vestuário SA v G-Star Raw CV, C-683/17, EU:C:2019:721, 12 September 2019 (‘Cofemel’) In its Cofemel decision, the Court of Justice of the European Union (CJEU) has ruled that, for designs to be protected by copyright under Directive 2001/29 (the ‘InfoSoc Directive’), what is required is just their sufficient originality; no other conditions can be imposed. As Advocate General (AG) Szpunar noted in his Opinion (EU:C:2019:363), despite the fact that the protection of works of applied art is as old as IP, it is not something that has been devoid of issues. Systems of sui generis protection have appeared over time, though never with an exclusive character, so that cumulation of protection has remained possible. With particular regard to copyright, the conflict with the principles of free competition has meant that the former has been often dependent on the design displaying a high level of artistic value. Theories like the Italian scindibilità and German Stufentheorie are examples in this sense. Other countries, however, have adopted a different approach: for instance, France has traditionally followed the theory of unity of art. In all this, at the EU level uncertainties regarding the correct approach to copyright protection for designs have been exacerbated further by CJEU decisions like Infopaq International A/S v Danske Dagblades Forening, C-5/08, EU:C:2009:465 (‘Infopaq’) and its progeny, notably Flos SpA v Semeraro Casa e Famiglia SpA, C-168/09, EU:C2011: 29 (‘Flos’).