This post is about a recent French case which shows that,
while French copyright law protects original handbags, explaining what exactly
makes a bag original has to be carefully worded, by the parties of course, but
for the courts as well. The
Cour de cassation, France highest civil
court, “broke” (‘casser’) a holding
of the Paris Court of appeals which, after having listed the various
elements which made a bag original, found no copyright infringement of this bag
evenwhile referring to other original elements of the bag.
Longchamp is a
French bag and accessories company. Its most famous model is the Pliage bag, a nylon bag which can be
folded to fit in a smaller bag (pliage
means ‘folding’ in French). Its success led to the creation of a whole range of
Pliage bags, which are now available
in nylon and leather, may or may not be foldable, and can even be personalized.
Longchamp discovered
in 2010 that bags similar to its Pliage
bag were sold online. The company and the original designer of the bag sued the
seller and the manufacturer of the bags sold online for copyright infringement.
The court of first instance, the Tribunal
de Grande Instance de Paris (TGI) rejected their claims. For the TGI, the Pliage bag was indeed protectable, but
the defendants had not infringed on any of the plaintiff’s rights. Plaintiffs
appealed, but the Paris Court of Appeals confirmed the judgment on September
13, 2013. Longchamp and the Pliage bag designer then took their case
to the Cour de cassation.
 |
| Pliage Bag, from the back |
The Pliage bag is
indeed famous. Plaintiffs even claimed on appeal that it is the most copied bag
in the world. Appellees did not dispute the originality of the Pliage bag, but argued instead that,
because the bag was an original combination of several mundane elements, only
this original combination could be protected by copyright, not the separate
elements. They further argue that the Pliage
bag was a combination of elements ordinarily used by every bag designer, and specific,
original characteristics, “namely the
specific form of the flap highlighted by the thick stitched sewing, the gold
button [closing the snap], highly
visible seams on all sides of the leather elements, the combination of brown
leather stitched with other materials, and specific proportions.”
The Court of Appeals agreed that the Pliage bag is original, as it combines these elements:
- small flap with snap, located between the two
handles and a cap portion of the zipper;
- slightly rounded shape of this little flap,
highlighted by a thick stitched sea
- -
sewing stitches on the front of the bag, in the extension
of the flap and evoking the outline of the inner bag;
-
- affixing of the flap on the back of the bag by a
double stitched seam;
-
- two handles finishing by rounded edges affixed
on each side of the bag opening by affixed tabs;
-
-two small rounded tabs on each end of the
zipper which highlight the top corners of the bag, curving upward;
- -
the trapezoidal shape of the body, seen from the
front;
- -
the rectangular bottom and
- -
the triangular profile.
The Court of Appeals then compared the Pliage bag with the allegedly counterfeiting bag and did not find it
infringes on Pliage. To come to this
conclusion, the Court of Appeals noted that the Appellee’s bag had a wider
flap, did not feature stitched seams and did not have a small gold button to
snap close the front flap. Also, both flaps had different shapes, and the stitches
of Appellee’s bag used the same color than the bag’s overall material, whereas
the bag’ s stitches contract in color with the body of the bag. The handles of
Appellee’s bag did not feature stitches, and the ending part of the handles had
a different shape. Also, both bags had different shape, rectangular for
Appellee’s bag and trapezoidal for the Pliage
bag.
The Court of Appeals noted that Appellee’s bag would have
been counterfeiting the Pliage bag if
it had used “the distinguishing characteristics of the combination of Longchamp bag
model: the specific form of the flap emphasized by the thick stitched sewing,
gold button, highly visible seams on all leather parts, the alliance of brown
leather stitched with other materials and colors, the specific proportions,
which are the dominant elements of the combination giving the model its
originality.”
The Court of Appeals found that Appellee’s bag had “its own physiognomy, a particular aesthetic
bias which alter the overall visual impression of this model as compared to the
Longchamp bag, which precludes any risk of confusion, especially since the
discriminating consumer of the famous Longchamp bag would immediately perceive
these differences.” Somehow, the right holders of a famous bag would have
to meet an even higher burden of copyright infringement proof because their
work is famous.
But the Cour de cassation found that, by this ruling,
the Court of Appeals had violated article
L. 122-4 of the French IP Code, which makes it illegal to reproduce fully
or partially a protected work without authorization of the right holder. For
the high court, “the existence of a
golden button, the alliance of brown leather stitched with other materials and
colors, and the "specific proportions" [of the bag] were not the
elements that the Court had chosen to assess the originality of the bag, and
also, the existence of a likelihood of confusion is irrelevant to the
characterization of the infringement of copyright.”
This last phrase is a welcome addition to the French fashion
copyright attorney’s toolbox,especially when defending the rights of famous
bags, such as the Pliage, or, say,
the Birkin, which would otherwise have
to convince courts that the sophisticated clientele would never take a $75
plastic Birkin for the real McCoy.
French Copyright does not serve as an indication of the source, but, rather,
protects the patrimonial and moral rights of the author of the work.
Picture is courtesy of Flickr user Cyril Attias under a CC BY-NC-ND 2.0 license.
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