In a March 7 2011 decision Bilbao Criminal Court Number Three sentenced two importers of costume jewellery to eight months' imprisonment for committing an IP crime.
The claim was filed by a well-known jewellery designer with regard to imported bracelets that were practically identical to her own designs. A complaint was filed and a charge made regarding the commission of an IP crime, as set out in Article 270.2 of the Criminal Code.
The defence mainly argued that:
- the jewellery could not be protected within the scope of the Intellectual Property Act;
- the bracelets retained showed differences from those created by the plaintiff; and
- the infringement was non-deliberate since the defendants had been unaware that the seized items were reproductions of the plaintiff's creations.
The judgment was based on the following reasoning.
Protected work
The court invoked Article 10 of the Intellectual Property Act, which determines what should be understood by a 'literary', 'artistic' or 'scientific' work and the scope of its protection.
Paragraph E of Article 10.1 includes as 'literary', 'artistic' or 'scientific' creations any "sculptures and works of painting, drawing, engraving or lithography, picture stories, cartoons or comics, including drafts or sketches therefore, and other works of plastic art, whether applied or not". The court considered that 'other works of plastic art' also encompass precious metals, jewellery, costume jewellery and other craft works, which are comparable to sculptures and paintings (fine arts), whenever these can be characterised as 'original creations'.
The court thus reasoned, in relation to the plaintiff's design, that its creative inspiration had no precedent that could be identified in previous works and it was therefore an original creation. Consequently, it fell within the scope of IP law and was entitled to protection as an original creation under the Intellectual Property Act.
Plagiarism
In the judgment, plagiarism was considered to have been proven. This was based on the fact that the imported items had structural and fundamental similarities to the plaintiff's bracelets. These similarities were significantly greater than the differences; the latter were deemed irrelevant and merely accessory-related, existing for the sole purpose of disguising imitation. According to the court, the similarities could not be attributed to coincidence.
Fraudulent conduct
The court also considered the proven fraudulent conduct of the defendants – namely, that they were aware that they were importing reproductions of the designer's work.
In order to reach this conclusion, the court took into account the defendants' previous fraudulent conduct with regard to original work and thus held that they could not plead ignorance. Also, since the accused were professionals in the costume jewellery and jewellery industry with over 20 years' experience, they could not feign ignorance of the offence.
The defendants have appealed this decision before the Bilbao Court of Appeal.
For further information on this topic please contact Patricia Alvarado at Grau & Angulo by telephone (+34 93 202 34 56), fax (+34 93 240 53 83) or email ([email protected]).