The Protection of Creative Designs: New Evaluation Standards Introduced by the Italian Supreme Court

By Alessandra Feller and Alessandra Bellani

Through judgment no. 23292 of November 13 2015, the Italian Supreme Court introduced a distinction between objective and subjective standards, which should guide the judges’ assessment in order to decide if an industrial design can seek protection under Italian copyright law (the “IC Law”).

The Supreme Court recalled the principles established under the IC Law providing that:

  • industrial designs are worthy of protection if they have a “quid pluris” that consists of creative and artistic features; and
  • simple creative works are worthy of protection even if they only have an intrinsic artistic value.

While creative features are established if the industrial design results from a subjective and personal conception or idea of the author, as per the artistic value, the Supreme Court identified the following standards:

Subjective standards:

  • designs must be capable of causing aesthetic emotions
  • designs must have particular creative and original forms, different from those normally distinguishing similar products on the market, going beyond the practical functionality of the design itself
  • forms must have autonomous and distinct relevance.

Objective standards (the aim of which is to make uniform judges’ decisions):

  • valuable recognition of the aesthetic and artistic qualities of the design in relevant cultural and institutional fields
  • recognition should not be connected with the practical function of the design itself
  • exposure in exhibits, museums, professional reviews and quotations in professional publications
  • use in artistic events
  • rewards
  • exclusive sale in the artistic market
  • if sold on the commercial market, the design value has to be substantial due to its artistic nature
  • reputation of the author of the design.

In this case, the Supreme Court resolved that the sole exposition of an industrial design during a commercial exhibition was not sufficient to grant to it artistic value protected under IC Law.

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