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Advocate General Maciej Szpunar has delivered his Opinion (not yet available in English) on the questions referred to the CJEU by the Portuguese Supreme Court in case C-683/17 (Cofemel – Sociedade de Vestuário, S.A. contra G-Star Raw CV). The referring court seeks to establish whether article 2(a) of Directive 2001/29 precludes industrial designs from being protected by copyright only where they present an increased artistic character, over and above what is normally required of other categories of works.

Those questions arise from the action brought on August 30, 2013, by G-Star Raw in a Portuguese court of first instance, claiming that some designs of jeans, sweatshirts and t-shirts marketed by Cofemel were identical or similar to some of its own designs, constituting an infringement of its copyright (and unfair competition).

In their written observations, the Italian, Czech and UK governments stated that industrial designs are subject to a different protection regime, to be determined by each Member State under article 17 of Directive 98/71 and article 96(2) of Regulation 6/2002.

AG Szpunar disagrees with that position, considering that any difference in Member States’ national legislation on copyright protection for industrial designs would jeopardize the uniform application sought by Directive 2001/29. According to the AG, the provisions invoked by the Member States should be interpreted only as a recognition of the principle of cumulative protection for industrial designs (in the way that works of applied art are entitled both to sui generis protection as designs and copyright protection). Hence, those articles cannot be interpreted as an exception to Directive 2001/29 or any other EU copyright legislation.

Answering the questions referred by the Portuguese Supreme Court, the Advocate General concludes that Directive 2010/29 precludes industrial designs from being protected by copyright only if they have an increased artistic value (over and above what is normally required of other categories of works). There is no legal basis in EU copyright law for these restrictions, since works of applied art are protected as the creator’s own intellectual creations (like all other categories of works).

According to AG Szpunar, while the level of originality required for copyright protection is not high, it is not “non-existent” either. Therefore, an industrial design must meet the same requirements as any other work to obtain copyright protection: it must be an intellectual creation reflecting the personality of its author and not just a technical work lacking any creativity. The AG considers that the designs at issue (jeans, sweatshirts and t-shirts) should not be protected by copyright because they are not sufficiently original.

AG Szpunar’s arguments are closely aligned with the Opinion of the European Copyright Society in relation to the case.

It remains to be seen whether the CJEU will follow the Advocate General’s reasoning, which could have an impact on the legal system of some Member States. We will closely follow the developments of the case and keep you informed.

Autora: Cristina Albiol

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cristina.albiol@cuatrecasas.com