[Editor's note] Like most countries and regions in the world, The rulings of the Court of Justice of the European Union have important guiding significance and predictive value for understanding the legal norms of the European Union. Esabaril (ELZABURU) At the beginning of each year, typical cases of the Court of Justice of the European Union in the previous year are summarized and published, And a brief review of each case, In order to help customers and partners to understand the EU intellectual property norms. Given the importance of Chinese customers and partners, We try to publish the Chinese version of typical cases on a weekly basis, It is convenient for Chinese partners to learn the latest information in a timely manner. 　　

[background] 　　

Portugal's Supreme Court has asked the European Court of Justice for a preliminary ruling on the copyright protection of clothing designs. 　　

Cofemel and G-Star It's two fashion designers, Manufacturing and marketing companies. 2013 years 8 month 30 day, G-Star The company sued the Portuguese Court of First Instance, requirement Cofemel The company stops infringing its copyright and unfair competition, The reason is that Cofemel Some jeans produced by the company, Sweater and T T-shirt product appearance design and G-Star The company's related product design is the same, while G-Star The company's products are original, Constitutes copyright protection "works" . Cofemel Company defense, Clothing design shall not constitute copyright protection "works" . 　　

The court of first instance ruled in favor G-Star The company's copyright infringement claim, requirement Cofemel The company stops the infringement, And compensate for the corresponding losses. Cofemel The company is not satisfied with the judgment of first instance, Appeal to the Court of Appeal in Lisbon. 　　

The appeals court rejected it Cofemel Corporate appeal, It stated in the judgment, According to the European Court of Justice 2009 years 7 month 16 Day control C-5/08 Number judgment (Infopaq International case) Middle pair "Directive of the European Parliament and of the Council on the harmonization of partial provisions on copyright and related rights in the information society (The first 2001/29/EC No) " The first 2 (a) Interpretation of article, " (Italy) Copyright and related rights law" The first 2 (1) (i) Article shall be understood as, Applied works of art (works of applied art) , Industrial product appearance design (industrial designs) , And design works (works of design) Etc, Just be original——The author's own intellectual creation results, It belongs to copyright protection, It doesn't have to have any particular aesthetic or artistic value. Appellate finding, Some of the plaintiff's clothing designs constitute copyrighted works, Therefore Cofemel The company's action infringed the plaintiff's copyright. 　　

Portugal's Supreme Court accepted the case Cofemel After the company's appeal, Find out the following facts: (1) G-Star The clothing design involved in the company shall be completed by its employees, Or it may be completed by the commissioned independent designer and the copyright of the corresponding design shall be transferred to him G-Star company; (2) In the field of fashion, The design and production process of these clothing designs is innovative; (3) These designs are characterized by a number of specific elements (3D effect, The location of the parts, Assembly mode, And so on) , Cofemel The company uses some of the same elements in its products. 　　

but, Portugal's Supreme Court said, although " (Italy) Copyright and related rights law" The first 2 (1) (i) Article explicitly states, Works protected by copyright include works of applied art, Appearance design for industrial products and appearance design works, However, it does not specify the degree of originality required to obtain copyright protection. And the issue at the heart of this case, Nor has consensus been reached in Portuguese legal practice and theory. Therefore, The Portuguese Supreme Court is not sure, According to the European Court of Justice 2009 years 7 month 16 Day control C-5/08 Number judgment (Infopaq International case) , and 2011 years 12 month 1 Day control C-145/10 Number judgment (Painer case) right "European Union regulation 2001/29/EC No" The first 2 (a) Interpretation of article, Should be understood as, Works of applied art, Appearance design of industrial products and appearance design works, etc, The same copyright protection applies to works and works of art, Only originality is required——The author's independent intellectual work, Or say, In addition to the above conditions, It can also require the existence of certain aesthetic or artistic value? 　　

Therefore, Portugal's Supreme Court decided to suspend the proceedings, The European Court of Justice is requested to make a preliminary ruling on the following issues: "European Union regulation 2001/29/EC No" The first 2 (a) Article should be read as, Member state laws on practical works of art, Industrial product design and practical design works are protected by copyright, In addition to the practical purpose of the work itself and the originality required by copyright protection, May not, (1) It is required to have a specific visual and unique effect from an aesthetic point of view; or, (2) The artistic characteristics of such works are strictly set, It also asks to consider the prevailing views of the culture and the industry, Limit the scope of protection to "Works of art (artistic creations) " or "artwork (works of art) " ? 　　

[conclusion] 　　

European court of justice ruling, "European Union regulation 2001/29/EC No" The first 2 (a) Article shall be read as, Prohibit member states from having laws on design (For example, the clothing design in this case) When copyright protection is applicable, Except for the utilitarian purpose of such works, It also requires the ability to achieve a certain degree, Unique visual effects in an aesthetic sense. Based on this conclusion, The European Court of Justice decided that no further analysis was needed. 　　

[comment] 　　

The ruling in this case has important implications within the European Union. Although it may not seem so, But the European Court made it clear, Clothing design works that meet the requirements of the work, Can obtain copyright protection. 　　

By objective judgment, After excluding the common elements, Identified existence (Even if only minimally) originality——The author's personal expression, Creation that can be reflected in a particular form, In order to obtain copyright protection. 　　

uniqueness (recognizability) Is a requirement that defines the scope of protected content. Its purpose, In a positive sense, It's about protecting the rights of creators; And in a negative sense, It's about letting third people know the boundaries of rights (Levola Hengelo case, C-310/17) . The subjective perception of consumers referred to in this ruling serves the same purpose. Because subjective views vary from person to person, Legislators seek the opposite——Accuracy judgment, Therefore, subjective views are excluded when assessing the scope of legal protection, It's also logical. 　　

compile: Liu Dan, Esabarry Legal Counsel　　source: Esabaril (ELZABURU) Intellectual property rights