It has taken us a while to note Case C-169/15, Montis Design BV v Goossens Meubelen BV, the latest from the EU Court of Justice on design copyright.  The case concerns copyright in two Montis chairs, the Charly armchair (above left) and the Chaplin dining chair (above right - in both cases, the current versions of that name from the Montis website). Their designs were registered at WIPO in 1988 as DM/010786, which expired in 1993 since Montis did not pay the first renewal fee.  This was unfortunate for them, as Goossens brought out a copycat product.  Montis sued them for breach of copyright.  The case found its way to the Benelux Court, which referred it to the CJEU.  The Benelux Opinion and referring Decision (in French and Flemish) are here.

The good news for Montis was that Article 21(1) of the Benelux Uniform Design Law provided that "A design or model of outstanding artistic character may be protected by both this law and by the law relating to copyright, if the conditions for the application of both are satisfied."  The bad news was that Article 21(3) provided that "Cancellation of the filing of a design or model of outstanding artistic character or the extinction of the exclusive right derived from the filing of such a design or model entails the simultaneous extinction of the copyright relating to that design or model, provided that the two rights belong to the same person; that extinction will not however take place if the proprietor of that design or model submits, in accordance with Article 24, a special declaration seeking to maintain his copyright."  They did not file any such declaration, so that their copyright became extinct in 1993.  The referred questions therefore concerned whether the copyright was resurrected, zombie-like, by the EU Term Directive 93/98, which entered force in 1993.

Actually, for once, the answer was fairly straightforward: the parties agreed that on 1 July 1995 no copyright existed anywhere in the EU, so on a literal reading of Article 10 of that Directive, it did not apply.  The reasons for the doubts expressed by the Benelux Court arose from a presumed lack of conformity with the Berne Convention.  The TRIPS Agreement, operative from 1 January 1995, requires member states to conform to Berne, but with a year's grace for compliance, so it was not binding on the EU until 1996.  Accordingly, said the Court of Justice, the Directive did not apply; the Benelux law was legitimate; and the copyright remained firmly dead and buried.

As always, the Advocate-General's Opinion contains some additional points of interest.  At para 48, he points out twice that the parties are in agreement that these chairs would meet the criteria for copyright protection, but then goes on to say that:

"... in more general terms, it is difficult to identify when an object (in this case, an armchair or a dining chair) can be classified as an ‘artistic work’ which is capable, by virtue of its individual characteristics, of benefiting from the protection inherent in copyright. It will not be necessary to go into this issue (which, moreover, is very dependent on factual assessments as to the originality and the degree of creativity exhibited by each item, as against its functional requirements), because, I repeat, in the proceedings before the national court no doubt has been expressed about the fact that the Charly armchair and the Chaplin dining chair are covered by copyright. I should point out that Article 17 of Directive 98/71 confers on Members States the power to decide ‘the extent to which, and the conditions under which, such a protection is conferred, including the level of originality required’, if their legislation gives protection inherent in copyright to designs and models."

We may be missing his point, but that does sound like quite a nuanced approach to copyright protection for designs - far from the blanket coverage by copyright feared by some.  This case did not engage Directive 98/71 (the Design Directive - or indeed the Community Design Regulation 6/2002) because the design in question lapsed before these instruments came into force, so his various comments on that Directive can only be relevant as pointers to the future direction of the Court of Justice in design copyright cases.