Copyright and concept store

On April 30, 2020, through the publication of the judgment no. 8433, issued by the Court of Cassation, a judicial case, which began before the Court of first instance of Milan in 2013, involving two well-known make-up companies, was partially concluded. The subject of the dispute was mainly based on the violation of copyright which, according to the clamant (hereinafter “Alfa”), occurred in the imitation by the competitor (hereinafter “Beta”) of the so-called concept store (i.e. a business unit projected to involve the consumer, enticing him to enjoy the services and products offered).

In particular, Beta was accused of having recreated, in its chain of stores, the same setting characterizing Alfa (e.g. the design of the entrance, the types of equipment, lighting, decorations, order uniforms, packaging). All this, according to Alfa, integrated the offence provided for by Article 2598, no. 1,2 and 3 of the Civil Code (acts of unfair competition), and the violation  of exclusive rights of economic realization, pursuant to Article 2, no. 5 of the Copyright Law.

Beta appealed to the Supreme Court of Cassation against the decision of the judges of merit; through the appeal, Beta complained that the Court of Merit had failed to verify the actual originality of the Alfa concept store. The Supreme Court, finding a lack of motivation, upheld the appeal and referred the case back to the Court of Appeal in Milan, which will have to decide.

With regard to the violation of Alfa’s rights to the concept store, the Supreme Court upheld the judgments of the first and second instance. The applicant Beta contested that the design of the concept store, commissioned by Alfa, did not meet the minimum requirements required by Article 1 and 2 of the Copyright Law and that, therefore, it could not be protected by copyright, since it was not an “architectural work” but, at most, a design work, which can be protected under Article 2 of the Copyright Law.

The Court of Cassation has in particular affirmed the following principle of law: “On the subject of copyright, a project or a work of interior design, in which there is a unitary design, with the adoption of a scheme in itself defined and visually appreciable, which reveals a clear “stylistic interpretation”, of components organized and coordinated to make the environment functional and harmonious, or the personal imprint of the author, can be protected as a work of architecture, pursuant to art. 5, n. 2 L.A. (“the drawings and the works of architecture”), since it’s not important the requirement of the inseparable incorporation of the furnishing elements with the building or the fact that the single furnishing elements that constitute it are or not simple or common and already used in the field of interior decoration, provided that it is an original combination result, not imposed by the author’s will to give solution to a technical-functional problem”.

The Court has therefore established the link between concept store and architectural work, confirming a more extensive notion, including all intellectual activities aimed at the creation and modification of spaces “to make them usable by man, in the physical environment, in the territory and landscape, in construction and also in the organization of interiors“. With regard to the possibility of qualifying the concept store as a design and model, the “legitimacy” judges have sanctioned the principle, already upheld by the EU Court, according to which the protection reserved to designs and models does not exclude that provided to the architectural work. The architectural work of interior design can therefore be protected not only in the individual elements of which the interior design is composed, but also as an architectural project.

At the end of this analysis, we could reflect on the fact that the interior decoration, defined as “evocative and distinctive sign of the company”, could be qualified as a trademark (see 10/07/2014, case C-421/2013 Apple) and therefore could be protected by the forms of protection available to the company in order to protect its distinctive signs.