On 1 December, the IP Court of Milan issued a judgment (no. 13487/2015) which granted copyright protection to a particular bottle designed by Ross Lovegrove, which was considered infringed by the glasses named “Sorgente” which are manufactured and commercialised by an Italian well-known company. The latter actually did not join the proceedings, hence the Court issued this decision based on the plaintiff’s allegations only.
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The Judges held that the bottle, as well as being new and original (there being no evidence of identical or similar earlier products), met the requirements of the “creative character” and “artistic value” required by art. 2 no. 10 of the Italian Copyright Law for copyright protection. In particular, according to the Judges “creativity is identifiable in the plastic image of the flowing water, in the representation of fluidity as opposed to the static nature of the container (…). The lines, which are not trivial and resemble waves, communicate the idea of running water that flows from the source. The bottle, usually an expression of immobility and rigidity, is instead represented here in order to give the feeling of fluidity, purity and grace; elements that constitute the essence of water.”
Moving on to the appraisal of the artistic value, the Judges recalled the Court’s consistent case law, which we discussed amongst others here and here on this blog, “according to which the judgment must be accompanied by the search for objective and verifiable evidence on a consolidated appreciation among the public, in qualified fields.” To this end, the Judges found that the Lovegrove bottle: i) was displayed in the S. Jose Museum of Art in California and is part of the permanent exhibition of the Pinakothek der Moderne in Munich (Bavaria); ii) won many international awards such as the nomination in the D&AD Award 2002, the Best Overall Concept and the Premier Award, as well as being featured on the cover of the magazine “Domus” and in fashion, financial, design and food magazines; iii) was used in a hundred prototypes in the film “007 Die Another Day”. Thus, the Judges concluded, “the presence in national and international exhibitions, the achievement of awards and accolades from critics and the exposure of the bottle in question in museums constitute serious indices of attribution to the enforced object, regardless of its industrial nature, of that artistic gradient required for the application of the protection conferred by art. 2 no. 10 of the Italian Copyright Law.”
Having verified the protectability of the bottle, the Judges moved on to examine the glasses in dispute, on the premise that “in order to speak of plagiarism, a complete reproduction of the object is not required: it is sufficient and required that the interfering product reproduces the essential features and characteristics that identify the work as an expression of the personality of the author,” and that give it creative character and artistic value. The Judges then found that “by looking at the bottle and at the glasses, you can detect a sort of continuum between the two objects”; and they concluded that there was plagiarism, “that is given by the actual repetition of the same curves, the same proportions and the resulting plastic effect that is achieved in this way.”
The Court therefore found a violation of the copyright on the bottle, and enjoined the defendant from further manufacturing and marketing the disputed glasses, with the establishment of a penalty of € 8 for each glass manufactured or marketed in violation of the order. The case was then put back to the evidentiary phase to the assessment of damages and the costs of litigation.