Copyright doesn’t wear Prada

23. October 2019

By Maria Sol Porro. Trademarks Lawyer and University Professor.

Conflict “G-Star” against “Cofemel”

After determining last year that the taste (of cheese) is not susceptible (for now) to be protected by copyright, the Court of Justice of the European Union (CJEU) resolves again in another conflicting case related to this right, this time about the textile design.
The conflict in question began with the demand of G-Star Raw CV (“G-Star”) against Cofemel- Sociedades de Vestuario S.A. (“Cofemel”) -both companies dedicated to the design, production and marketing of clothing- for the infringement of the ¨copyright¨ of its design models related to the marketing of its jeans, sweatshirts and t-shirts. Specifically, G-Star highlighted that its clothing items were original creations and should be classified as works that are subject to copyright protection.
Before this claim, submitted by the Superior Court of Portugal, the CJEU conducted an analysis of the degree of originality required of the designs to be susceptible to copyright protection and, in particular, whether the circumstance of generating a ¨ visual effect of its own and considerable from the aesthetic point of view¨ constitutes a fundamental element to grant copyright protection.

Intelectual human creation

In this context, the Court of Justice of the European Union recalls in its opinion that, in principle, it is the ¨works¨ which are the result of intellectual human creations that are protected by copyright. Then, it establishes that, although in certain cases the drawings and models can be considered as works, it must be demonstrated “with sufficient precision and objectivity” that these are the result of an intellectual human creation, which reflects the freedom of choice and the personality of his actor. Therefore, the Court clarifies that no clothing design is protected by copyright only for its ¨aesthetic effect¨, since this is the result of a subjective feeling of beauty, and can only benefit from this right when it is an original work.
In this way, the CJEU resolves once again against the expansion of ¨copyright protection¨ to other human creations by highlighting the limits that this intellectual property right requires in order to be claimed.

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