In an order dated November 28, 2024, the Venice Court ruled on a preliminary injunction proceeding concerning an alleged violation of copyright, counterfeiting and unfair competition involving a Christmas book and an associated doll.
The plaintiff argued that the contested work reproduced, without authorization, the distinctive elements of the story contained in their book and that the doll associated with the book bore significant similarities to the one marketed by the plaintiff.
Therefore, they requested that the Court adopt urgent measures to seize and remove from the market the defendant’s materials, which were allegedly in violation.
The Concept of Creativity and Copyright Infringement
According to the jurisprudence, copyright protects the original form of expression of a work, provided it is creative and capable of external representation.
Creativity does not necessarily coincide with originality or absolute novelty, but must represent a personal and individual expression of an idea.
To assess the existence of copyright infringement, a comprehensive and synthetic comparison between the works is necessary, considering both the internal form, such as the narrative plot, structure, and characters, and the external form, represented by the outward appearance and style.
From the comparative analysis carried out by the Court, it emerged that, although starting from the same inspiring idea linked to Christmas elves, the two works differed significantly in their expressive and stylistic form. The illustrations in the plaintiff’s book were, in fact, executed in watercolor, with blurred contours and warm and soft colors, while the defendant’s work adopted a digital technique with defined contours, bright and vibrant colors, and a more detailed naturalistic representation.
The narrative structure of the two works was also assessed as different, as the first used short and simple sentences, while the second adopted an articulated language, with more complex sentences.
Other points of divergence identified by the Judge are also the plot of the works and the meaning underlying it.
As for the doll associated with the book, the plaintiff has not demonstrated that this has an artistic value such as to be included among the works of industrial design protected by copyright. Furthermore, it was not possible to find such creativity as to distinguish the elf-shaped doll as an autonomous fantasy character, since it incorporated the typical features of Christmas elves and children’s toys, such as big eyes, a smiling mouth, long limbs, and a pointed hat.
These elements, widely rooted in tradition and the collective imagination, have not proved sufficiently original to guarantee autonomous protection as a work of the mind.
Moreover, the comparison with the doll associated with the defendant’s work has highlighted differences in materials and aesthetic characteristics, excluding a slavish or servile reproduction pursuant to current legislation.
Unfair Competition
The plaintiff also invoked unfair competition for the alleged linkage and undue exploitation of the reputation of the plaintiff’s work and entrepreneurial project, as well as having contested the so-called parasitic competition for the serious risk of trademark dilution.
However, no behavior of servile imitation was found in the defendant’s products, as there was no risk that the average consumer could be misled regarding the origin of both the book and the doll, considering also the differences in the way the respective products were presented to the public.
The only similarity found by the Court is the joint marketing of a book and a doll, which, however, considered in isolation, does not constitute the continuous and systematic activity necessary to configure the parasitic phenomenon provided for by the Italian system.
Conclusions
In light of the above, the Court dismissed the plaintiff’s claims, having found no violation of copyright in terms of infringement, nor conduct attributable to unfair competition.
This order reaffirms the importance of distinguishing between generic ideas, which are not protected by copyright, and their original and creative expression, the only form subject to legal protection.
Elena Bandinelli