Judgement in the case Cofemel v. G-Star

In intellectual property law, objects can sometimes be protected by different rights. This is so uncommon, but in the case of conflicts, fundamental questions about the coexistence of different rights arise. Recently, the CJEU dealt with the relationship between copyrights and the rights arising from a design in a judgement from 12 September 2019 in the case C-683/17 (Cofemel v. G-Star).

The world-famous jeans producer G-Star has sued its competitor because the later was producing similar designs of jeans and T-shirts. The Portuguese court, to which the case was handed, said that the works of applied arts, industrial designs and design works can without doubt be copyrighted. However, the court was not sure to what extent should the originality be scrutinized. This is why the court asked the CJEU, whether it is in accordance with Article 2(a) of the Directive 2001/29/ES (InfoSoc Directive) to define “works” by its unique and distinguished visual effect from an aesthetic point of view.

The CJEU said that the term “work” should be interpreted uniformly in the whole EU. The EU law sets two cumulative conditions for a work to be copyrighted; the object has to be original in the sense of the author’s own intellectual creation and the elements of the work have to be an expression of that creation. Also, the object needs to be identifiable precisely and objectively.

The Bern convention for the protection of literary and artistic works does not preclude the possibility of cumulation of different rights. Also in accordance with EU law, design rights and copyrights do not exclude each other. Nevertheless, each protection system pursue different goals and is differently regulated. Copyrighting an object protected as a design should not interfere with the goals and the effectiveness of the protection. When copyright protection is assessed according to the InfoSoc Directive, the only two relevant conditions are the originality and the expression of the creation. The aesthetical element is therefore not relevant as it can be extremely subjective.