When the product is also a work of art

With sentence of December 13th 2021, no. 10280/2021, the Court of Milan – by listing the criteria able to distinguish a successful product from a work of art – pointed out when a product destined to be on the market has artistic value.

The case concerned the counterfeiting of a popular handbag created by the French fashion house Longchamp. The handbag under exam, in the model Le Pliage, is a product characterized by particular shapes which made it instantly recognizable by the public, such as the trapezoidal shape of the body of the bag, the two little rounded leather flaps in the upper corners, the tubular handles with rounded points in the extremities and the chromatic contrast between the materials of the different elements.

Having found out that, in Lombardy, bags completely identical to the Le Pliage model had been placed on the market, the well-known fashion house addressed the Judicial Authority asking not only for the assessment of the counterfeiting and the unfair competition of the competing manufacturer, but invoking also the protection provided by the Italian copyright law (L. 633/41).

To sustain its own requests, Longchamp clarified to be owner of two EU three-dimensional trademarks which claimed precisely the features of the Le Pliage model. Moreover, it was highlighted how the aesthetic features of the handbag were particularly appreciated by the public, having sold more than 54 million of pieces in the world.

Precisely due to the commercial success of the product, Longchamp claimed even the protection reserved to creative works pursuant to art. 2 (10) of the Italian Copyright Law, that is the protection recognized to “work of industrial design which present on its own creative character and artistic value”.

With the decision under exam, the Court of Milan ascertained and declared the responsibility of the defendant company for the counterfeiting of the exclusive rights of Longchamp with regards to the two European trademarks, but it considered that the Le Pliage handbag could not benefit from the authorial protection related to work of industrial design.

To support its conclusion, the Court clarified that the applicability of the rules on copyright presumes the effective existence of the artistic character of the shapes of the product and that, in the case of the Le Pliage bag, such an artistic character could not be recognized.

In particular, in the Court’s opinion, the artistic value of the exterior aspect of a product can be obtained by a series of elements, such as:

  • The acknowledgement, by cultural and institutional circles, of the existence of aesthetic and artistic qualities;
  • The exposition in exhibits or museums;
  • The publication on specialized magazines;
  • The attribution of awards;
  • The creation by a well-known artist.

In relation to the commercial success of the product, the Court denied that such criteria could, on its own, be sufficient to attribute artistic value. As a matter of fact, in order to recognize authorial protection to the exterior aspect of a successful product, it should have “acquired a market value so high as to go beyond the one linked only to its functionality”.

Ilaria Feriti