Thursday 27 January 2011

Court sheds light on lamp protection

It's not the sort of case that crops up on a daily basis, but Case C‑168/09 Flos SpA v Semeraro Casa e Famiglia SpA, a Court of Milan reference to the European Court of Justice for a preliminary ruling, does raise some interesting points of principle.  What happened here is that Flos's classic Arca lamp, created in 1962, was originally protected by design law in Italy but fell into the public domain.   Subsequently, when Italy implemented the Design Directive (Directive 98/71), the lamp fell back into the private domain, this time being protected by copyright.  Semeraro imported Chinese Fluida lamps which looked pretty much the same, so Flos sued for copyright infringement.

Now different versions of the Italian law (i) provided for a 10-year moratorium on enforcing copyright against defendants trading in re-protected works or (ii) provided that they couldn't be sued for an indefinite period of time.  Were these laws compatible with the Directive's Article 17, which states:
"A design protected by a design right registered in or in respect of a Member State in accordance with this Directive shall also be eligible for protection under the law of copyright of that State as from the date on which the design was created or fixed in any form. The extent to which, and the conditions under which, such a protection is conferred, including the level of originality required, shall be determined by each Member State".
No, said the court, Italy was precluded from enacting moratoria which eroded the effective benefit that copyright was intended to confer. This ruling is particularly interesting in its analysis and application of the principle of the protection of legitimate expectations -- a doctrine that doesn't get discussed in IP cases before the ECJ.

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