Court of Justice harmonises copyright threshold for product design

European prohibition therefore more accessible - G-Star/Cofemel, on copyright and design rights in product design.

The appearance of products can be protected both by design right and copyright. In the Netherlands, the threshold for copyright protection is not too high (even striped wallpaper is protected by copyright!). In many other European countries there is a more cautious approach to copyright protection, especially where 'works of applied art' are concerned - utilitarian objects, such as fashion and design. That is why people have long been looking forward to hearing what the EU Court of Justice has to think about it.

In Portugal, a work was only protected by copyright if it is an 'artistic creation' or if it shows an 'aesthetically striking visual effect'. In the infringement case brought by G-Star, Cofemel defended itself by arguing that G-Star's jeans and t-shirts do not meet that test. The Court of Justice had to decide whether this high threshold was admissible.

First of all, the Court confirms that the concept for works has been harmonised. All countries should therefore apply at least the same test. This should also make it easier in the future for courts to issue a Europe-wide ban. The Court of Justice also ruled that an 'aesthetic effect' is too subjective as a test: it is not sufficiently precise and objectively clear to determine. After all, tastes differ. The only threshold for a copyrighted work is that it must be an intellectual creation that reflects its author's freedom of choice and personality. However, the Court states that "the protection of copyright (...) is (...) reserved for objects which deserve to be classified as works". We will have to wait and see whether this phrase will affect established practice. The height of the threshold will have to be determined on a case-by-case basis.

There is already one judgment in which a Dutch judge in preliminary relief proceedings tested against the Cofemel judgment. The conclusion in that case: the work test (whether something can be a copyright protected work) has not been changed. The jacket in question is considered to be a work protected by copyright and an infringement has been assumed in this matter.

We will also especially look at the case law of the countries surrounding us, which used much stricter work tests. The proof of the pudding is in the eating.

Moïra Truijens