Court of Milan, Decisions of 26 April 2011 and 7 July 2011, No. 72203/10 and 31632/11

The Court of Milan says it straight and loud: Design works are eligible for protection as copyrighted works, even if they have never been registered under design law.

Cassina, the leading Italian furniture maker and exclusive manufacturer of authentic Le Corbusier furniture, asked the Court of Milan for a preliminary injunction against High Tech, another Italian company selling pieces of furniture identical to the ones designed by Le Corbusier.

Cassina's production of Le Corbusier designs is protected by an exclusive, worldwide rights license, drawn up in 1964, when Le Corbusier was still alive, granted by the Foundation Le Corbusier and the co-authors.

Cassina claimed infringement of its exclusive copyright on Le Corbusier's designs by High Tech.

High Tech denied any infringement, arguing that in light of the recent decision of the Court of Justice of the European Union in the Flos v. Semeraro case concerning the interpretation of the Directive on Legal Protection of Designs, Cassina's products could not enjoy any protection under copyright law. According to High Tech's arguments − shared also by some scholars − this ruling interpreted the Directive as preventing a design work which has never been registered as a design from being eligible for protection under Italian copyright law.

The Court of Milan, however, did not share this view and emphasized that the Flos v. Semeraro decision incidentally made an important point stating that copyright protection for unregistered design work may arise under other Directives, such as the Directive on the Harmonization of Certain Aspects of Copyright. Therefore, if an unregistered design work meets the requirements of that Directive and the implementing copyright law, it must be protected accordingly. Design works are suitable for protection according to Italian Copyright Law since 2001. The sole requirements for protection under this law are artistic value and creative character.

On this basis, the Court of Milan, both at first and second instance, ruled that for a design work to enjoy copyright protection under Italian law a previous design registration was not relevant but protection must be granted if its conditions are met.

As for the "artistic value" requirement − which sometimes is defined as a threshold of a higher aesthetic value than average (but this has always been controversial) − the Court of Milan maintained that it was a parameter to be interpreted in the most objective way. The court admitted that proving such requirement might be easier for "historical" designs, which have enjoyed a longer time to affirm their value in the market. However, the recognition by a cultural élite must also be considered evidence reliable and verifiable enough. Once the artistic value of a design item is proved, copyright protection shall be granted.

In the case at issue, the court considered it an explicit and verifiable confirmation of the artistic value of Le Corbusier's pieces of furniture that they were exposed in museums and appreciated by cultural associations and critics alike.

In light of the above, the court ruled that High Tech's sale of furniture which copied Cassina's Le Corbusier furniture amounted to an act of infringement, prohibited under copyright law. On this basis, the court issued an injunctive relief seizing these furniture pieces and preventing High Tech from selling them.