In a recent judgment concerning a dispute between Jean Cassegrain S.A.S (Longchamp) and a Belgian reseller of leather handbags, the Court of Appeal of Ghent denied copyright protection to Jean Cassegrain’s handbag “Le Pliage,” serial number 1623, created and commercialized since 1993. 

The court’s conclusions confirm what had been decided by the Court of First Instance of Ghent in 2013, in the same dispute. However, the Court of Appeal’s decision differs from what has previously been decided by other jurisdictions, both Belgian and foreign, namely that the Le Pliage handbag, with serial number 1623, is original and therefore copyright protected. 

Under Belgian law and in line with harmonized European copyright law (cf. ECJ judgment Infopaq, Case C-5/08), like any other fashion item a newly created handbag can indeed benefit from the copyright protection in Book XI, Title 5 (in particular, Chapters 1 and 2) of the Belgian Economic Code, replacing the Belgian Copyright Act of 30 June 1994, if several conditions are met. 

A newly created handbag will enjoy copyright protection only if it constitutes an original work, meaning that it is (1) its designer’s own intellectual creation, (2) reflecting the designer’s personality and expressing the designer’s free and creative choices. Creations which are banal or the appearance of which is determined by, for instance, purely technical or functional requirements do not constitute original creations. 

However, an original combination of several banal and therefore not-copyright protected elements can, in contrast, be considered a sufficient expression of the designer’s creative spirit and, therefore, be granted copyright protection. For instance, the addition of a specific colour or the use of a particular clothing material in combination with other elements that may not as such enjoy copyright protection can still be considered an original creation. 

In the proceedings before the Court of Appeal of Ghent, Jean Cassegrain S.A.S. relied on the combination of different visual characteristics of its Le Pliage handbag (such as its quadrilateral basic structure and the lip-shaped ends of its upper angles) in order to claim copyright protection and the condemnation of the alleged infringer. Although these visual characteristics, combined with the absence of proof of any prior creations (almost) identical to the Le Pliage handbag, were sufficient for Jean Cassegrain S.A.S. to obtain copyright protection of its handbag in the past, the Court of Appeal of Ghent decided to follow the argument developed by the Belgian reseller and denied copyright protection in the examined case. 

The court considered that with Le Pliage, its designer may have created a new style, a new trend in the handbag market, as suggested by the multiple uses made by other handbag producers of the same or similar characteristics. However, based on these findings, the court underlined that the characteristics of a style or trend cannot be copyright protected, given that such protection could constitute an obstacle to the freedom of expression of other potential creators. The court therefore rejected Jean Cassegrain S.A.S.’s claim.

The Court of Appeal explicitly rejected the possibility to invoke, in a copyright dispute, the dilution principle applicable in trade mark law, according to which a trade mark is liable to revocation if it has become, in consequence of acts or inactivity of the trademark holder, the common name, or otherwise descriptive, in the trade for a product or service in respect of which it has been registered. Nonetheless, it seems likely that the reasoning of the court is nevertheless based, at least partially, on the same principle. In this respect, it should be recalled that in its judgment of 27 April 2006, in case C-145/05, the European Court of Justice stated that the dilution principle, and the vigilant conduct it demands of the trade mark holder, “is not confined to trade mark protection, in fact, and may apply in other fields of community law where an individual seeks to benefit from a right deriving from that legal order”. 

It will be interesting to see to what extent future jurisprudence will confirm or reject the application of the dilution principle in copyright and, more specifically, whether other national or EU courts will reject copyright protection for fashion items which they consider having started a new style or trend.