The Judgment of the Court of Justice of the European Union (hereinafter, CJEU) of 12 September 2019 in the case G-STAR vs. COFEMEL , raised a series of doubts and reflections related to a preliminary question of the Supreme Court of Portugal which asked the CJEU the following question: Can a pair of jeans be considered an ” artwork ” within the meaning of intellectual property law?

The background of that question was originated when the company G-STAR brought an action against the company COFEMEL, on the grounds that the latter was developing models similar to its own. For this reason, G-STAR claimed that COFEMEL was infringing its copyright, as it considered that some of its models were original intellectual creations and should be classified as “artworks”, under the protection of intellectual property rights.

At this point, the ECJ considered whether Portugal’s national legislation was contrary to Directive 29/2001 by considering and conferring copyright protection on clothing models such as jeans.

In this regard, the Court of Justice has repeatedly defined the concept of “work” as, on the one hand, the existence of an original object, in the sense of reflecting the personality of the author, and on the other hand, elements expressing such intellectual creation, on the understanding that it must be an identifiable object with sufficient precision and objectivity, not based solely on sensations. On the other hand, this same court, considers that the definition of object, model or design (protected by industrial property rights); is determined by technical considerations, leaving no room for the exercise of creative freedom.

Thus, it must be remembered that industrial property rights are characterized and acquired at the time of public registration of the designs, models or objects, while the rights inherent in intellectual property are acquired in themselves, intrinsically, once the work is completed (a painting, a book, a play…).

Therefore, in the hypothetical case of considering a pair of jeans as an “artwork”, as alleged by G-STAR, we would be faced with a scenario in which all those designs, models and objects, in addition to being protected by industrial property rights, would be protected by intellectual property rights by equating an “object” to an “artwork” almost automatically.

However, although it is true that European legislation has admitted, through the principle of accumulation, that an “object” can be considered as a “work” and be protected by both industrial and intellectual property rights, not all objects, in themselves, reach that condition automatically.

The ruling concludes that an object, model or garment in this case; to obtain copyright protection, it must give off an aesthetic character understood as the intrinsic subjective sensation of beauty experienced by each person when contemplating it, generating its own considerable visual effect that justifies its classification as a “artwork”.

Therefore, the ECJ concludes that the Portuguese national legislation is contrary to Directive 29/2001 in the sense that it confers, in addition to industrial property rights, protection under copyright (intellectual property) on models of clothing, such as jeans, almost automatically without taking into account all the conditions that an “object” must meet in order to be considered a “artwork”.

Sentencia del Tribunal de Justicia de la Unión Europea (Sala Tercera) de 12 de septiembre de 2019. N.º de asunto C-687/17, G-Star Raw CV contra Cofemel – Sociedade de Vestuário, S. A.. Ref. web: http://curia.europa.eu/juris/document/document.jsf?text=&docid=217668&pageIndex=0&doclang=ES&mode=req&dir=&occ=first&part=1&cid=13251891
Sentencias del Tribunal de Justicia de la Unión Europea de 16 de julio de 2009. N.º de asunto: C-5/08, Infopaq International; y de 13 de noviembre de 2018. N.º de asunto: C-310/17, Levola Hengelo.

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