Slavish imitation of lamps: a question or three for the ECJ

The United Kingdom's Intellectual Property Office has spotted a case that has been referred to the European Court of Justice for a preliminary ruling concerning that horridly complex area where copyright meets designs. The reference is in Case C-168/09 Flos SpA v Semeraro Casa & Famiglia SpA, which an Italian court referred to the ECJ this May.

Slaves and lamps have a long shared history (right), but this is the first time slavish imitation of lamps has been before Europe's top court

The helpful summary by the IPO of the incredibly verbose questions which were actually asked runs like this:

"Under its domestic legislation, Italy conferred copyright protection on industrial designs which possessed artistic value (Article 2 of Law 633/1941).

Under this legislation, the national court ordered that the defendant’s lamp be impounded and prohibited them from continuing to market them, holding that they were a slavish imitation of the appellant’s lamp.

The Milan District Court has asked the Court of Justice for judgment on the following questions:

1 Does the discretion accorded to a Member State by Articles 17 and 19 of Directive 98/71/EC to decide the extent to which and the conditions under which such protection is conferred, extend to permitting the Member State to preclude from protection, designs that had never been registered as designs or, where the registration had expired before the date on which the statutory provisions introducing copyright protection came into force?

2 If the answer is in the negative, is this discretion allowed where a third party has, without authorisation from the copyright holder, produced and marketed products based on such designs?

3 If the answer to both the above is negative is there any difference if the third party’s products are based on a design where protection has been precluded for a substantial period (10 years)?"

If you'd like to send a comment on these questions, the IPO would like you to do so before 17 July, in other words by close of play tomorrow. Please email your comments here.