Copyright protection for “concept” store confirmed but to pay compensation objective criteria are needed.

The Court of Cassation, with judgement no. 8433 of April 30th 2020, confirmed once again that a project of interior design can benefit from the protection provided by art. 5 n. 2 of the Italian Copyright Law.

The interior design of a store can be protected if it contains:

“ a unified project, a pattern visually noticeable, which reveals a clear “stylistic key”, of single components organized and coordinated to make the environment functional and harmonious, that is the author’s personal imprint (…), regardless of the requirement of an inseparable incorporation of the furnishing elements with the building, or the fact that the individual furnishing elements constituting it are or not simple or common and already used in the sector, as long as the result is an original combination, not imposed by a technical-functional problem that the author wants to solve”.

Thus, after the Court of Milan in 2015 and the Court of Appeal of Milan in 2018 had already stated accordingly, the Court of Cassation deciding on the case KIKO s.r.l. vs. WJCON s.r.l. confirmed that the interiors of the WJCON stores show “both in the overall visual impression and in the structural composition of the stores, an impressive resemblance”, taking in a slavish way the concept of the disposition of the furnishings elements of the stores, the placement of the products, the colors used, the lights etc.

WJCON argued that KIKO concept store could not be protected as a work of architecture for it lacked the identification of a specific building area in which the artistic work should be incorporated and an organization of the environment by means of fixed furnishing items.

In Wjcon’s opinion, KIKO could have found protection as designs for the single furnishing items, but not for the store in its entirety.

The Court instead stated that the interior design project can be also protected as a work of architecture as it is recognizable as a unified and creative work of the author, resulted from specific choices of the overall composition of the elements such as the color of the walls and particular light effects.

The Court did not consider the fact that the store is not composed by a single building.

Given that the project elaborated by the design firm had emphasized the organization of the space by means of composition of elements, even common, to be considered by the original overall work because it features a sufficient minimum creative contribution, the store structure can be protected in accordance with art. 2 and 5 of the Italian Copyright Law as an overall work.

Nevertheless, for what concerns the liquidation of the damage, the Court of Cassation affirmed that it must occur on the basis of objective and proven criteria for which, considering the quantification of the damage elaborated by the First Degree Judge as arbitrary, the Court annulled the contested decision and referred the case back to the Court of Appeal for a new quantification.