Background of the case.

The entites Cofemel and G-Star both are in the design business, the manufacturing and trade of clothes. Both are designing jeans, jumpers and shirts. In august 2013, G-Star filed a lawsuit based on intellectual property right´s infringement and unfair competition acts before the Portuguese Courts. G-Star argued that the items they produce (jeans, shirts, jumpers) should be considered as intellectual creations sufficiently original and thus they are granted protection under the intellectual property legal regime. Cofemel however declared that the aforementioned goods were not under the Copyright umbrella. In first instance as well as in the Appeal, it was upheld the ground of G-Star and Cofemel was convicted to pay the corresponding economic compensation. Subsequently, Cofemel files an Appeal before the Tribunal de Justiça in Portugal. This Court has stayed proceedings, since even though it considers that the items at stake may have Copyright, since the originality goes beyond the technical feature, as long as create a unique and considerable visual effect from the aesthetical point of view, the Court has referred for clarifications to the EUCJ the following questions:

  1. Is it contrary to the interpretation of the EUCJ of Article 2,a) of Directive 2001/29 to a national regulation – in the current matter, Article 2.1, i), of the Copyright and related rights code – which grants copyright to the work of applied arts, paintings and utility models or works of design which go beyond the technical features and create a unique and distinctive visual effect from the aesthetic point of view, being the originality the main criteria as to determine the scope of protection, in the field of Copyright?

The designs of the clothes can be considered as works according to the Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society, as long as they are an original item and fulfill the parameters established in settled case law. Anyways, an item will be original when reflects the personality of the author, and will not be qualified as such the items at stake, as they create merely an aesthetic effect which is something intrinsic subjective to the concept of beauty which each individual experiments when observing clothes. The criteria of sufficient precision and objectivity should be again assessed in order to stablish whether the items are under the Copyright umbrella.

Therefore, regardless of the possibility of having an accumulation of protections based on Copyright and Industrial property, this will be defined, and in particular when it comes to clothes, no only when they generate a unique and considerable visual effect from the aesthetic point of view.

The answer thus to the first questions is negative.

  1. Is it contrary to the interpretation of the EUCJ of Article 2,a) of Directive 2001/29 to a national regulation – in the current matter, Article 2.1, i), of the Copyright and related rights code – which grants copyright to the work of applied arts, paintings and utility models or works of design if under a strict interpretation as with regards to the artistic character and taking into account the dominant ideas in the cultural and institutional background, it deserves to be considered as an artistic creation or work of art?

Based on the previous answer, the Court does not proceed to respond the second question.

Judgment of the EUCJ (Third Chamber) of September 12, 2019. Matter C-683/17

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