A number of Belgian IP cases have involved the famous Le Pliage handbag created by Jean Cassegrain (also known by the LONGCHAMPS trademark under which the bag is marketed).
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The majority of case law to date has recognised that this handbag can be protected under copyright law.(1) However, on October 20 2014 the Ghent Court of Appeal surprisingly decided that the basic features of a style or trend are not eligible for protection under copyright law, based on an economic and cultural argument and Article 10(1) of the European Convention on Human Rights.(2) The court decided that the features of a product (in this case a handbag) which was the starting point of a trend or a style cannot be protected by copyright.
For a fashion item to be protected by copyright, it must be 'original' (ie, it must be the author's intellectual work and an expression of his or her free creative choice). Any fashion accessory can be deemed original if these two conditions are met.(3) The combination of different elements, even if they are not original in themselves, can also be original and therefore protected by copyright. In this regard, the European Court of Justice has ruled that:
"regarding the elements of such works covered by the protection, it should be observed that they consist of words which, considered in isolation, are not as such an intellectual creation of the author who employs them. It is only through the choice, sequence and combination of those words that the author may express his creativity in an original manner and achieve a result which is an intellectual creation."(4)
It is therefore unnecessary to prove the originality of each element separately. The proof of originality of a combination of elements is sufficient. The author's creative choice is found in such a combination.
In fashion particularly, originality often comes from combinations of banal elements or elements that are already in the public domain.(5) Numerous shapes and forms are already well known and have already been used in other products. The use of a well-known colour in combination with other elements could thus potentially be protected by copyright.
In Belgium, there is extensive case law regarding handbags specifically.(6) In a case involving Kipling bags, the Brussels Court of Appeal ruled that their original character came from:
- the systematic use of stitching;
- the large metallic zips ending in a black plastic disc with the name Kipling on it; and
- a relatively large round black logo at the centre of the bags.(7)
In another case, the originality of a handbag was accepted based on its combination of a rectangular base, a specific flap and handles and the specific composition of these elements.(8)
A number of Belgian court decisions have acknowledged the Le Pliage handbag's originality. The Liege Court of Appeal decided that thanks to its combination of different, relatively common features (eg, handles, flaps and pliability), the disputed bag had a strong original character that could not be confused with other items and was an expression of its author's creative effort.(9)
The Brussels Court of Appeal also decided that the Le Pliage handbag was an original work for similar reasons.(10) In its latest decision,(11) the court held that the combination of various elements (ie, the shape of the bag and its specific handles and flap) and the proportions of these different elements were an expression of the author's free and creative choices and thus constituted an original work with its own character.
In its October 2014 decision,(12) the Ghent Court of Appeal first stated that the claimed protection concerned the shape, contours and visual features of the bag in question and not the fact that it was pliable. It also highlighted that the author had created a trend with this bag.
The court decided that the basic features of a style or trend could not be protected by copyright, as that would be detrimental to "the development of culture", referring to examples from architecture. It stated that if a trend or style could be protected by copyright, the freedom of expression of other authors (as provided by Article 10 of the European Convention on Human Rights) would then be limited. The court insisted that it was important to avoid trends being limited to private monopolies.
Further, the court made an economic argument: given that the rights belong to a company (ie, SAS Jean Cassegrain) and not to a natural person, the company would benefit from them indefinitely. According to the court this was an unacceptable outcome.
It is clear that the Le Pliage handbag can be protected by copyright. However, this does not automatically mean that no feature of the bag can be reproduced. Whether some features of a trend or a style can be freely reproduced is another issue entirely. Existing case law and doctrine have addressed this issue and provided some nuanced responses. Counterfeiting is generally established when there is a use of copyrighted components. Claims of counterfeiting should therefore relate to what makes a product original in whole or in part.
The Ghent Court of Appeal's decision was wrong on several points. First, the fact that the item in question was the starting point of a trend or style is irrelevant. Even when this is the case, it is possible to recognise original and copyrightable elements.
Second, copyright protects the form and not the substance of a work. Consequently, it is difficult to understand how protecting an item which is the starting point of a trend or style could constitute a limitation of another author's freedom of expression.
Third, regarding the court's economic argument, the fact that a company is the rights holder does not affect the duration of that right (as defined under Article XI.166 of the Economic Code, which replaced Article 2 of the 1994 Copyright Law). Further, this argument does not constitute a basis for disregarding legal provisions.
The Ghent Court of Appeal could have decided that there had been no counterfeiting, but the court had no valid legal grounds for deciding that the item in question could not be protected because it was the starting point of a trend or style.
For further information on this topic please contact Geoffrey Froidbise ALTIUS by telephone (+32 2 426 1414) or email (firstname.lastname@example.org). The ALTIUS website can be accessed at www.altius.com.
(1) See for example Brussels, November 16 2004, RAGB, 2005, p 1837; Brussels, May 18 2006, RG 2003/AR/880, unpublished; Brussels, April 20 2012, RG 2012/AR/2910, unpublished; Liege, December 28 2006, IRDI, 2007, p 26; Brussels, December 5 2014, RG 2014/QR/90 and 94, unpublished; Brussels, June 19 2015, RG 2015/5423, unpublished.
(4) ECJ, July 16 2009, C-5/08, 45, Infopaq International A/S/Danske Dagblades Forening, available at www.curia.eu.
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