Doceram, Cofemel and Brompton: How does the Current and Future CJEU Case Law Affect Digital Designs?

Abstract

Digital design is generally associated with web design namely graphic design for digital products off or online. This includes web sites but also movies and videogames. These designs are, traditionally, in two dimensions and more recently, can be in three dimensions such as augmented or virtual reality. There are also designs initially made digitally namely computer-aided (CAD) designs which are then manufactured in the traditional way or more recently 3D printed. The concept of digital design is therefore broad involving both two-dimensional (2D) and three dimensional (3D) designs, both functional and non-functional (i.e. purely decorative) designs. This paper examines two recent and important decisions and one pending reference to the Court of Justice of the European Union (CJEU) affecting the protection of 2D and 3D designs including digital designs. In the EU, designs can be protected by several intellectual property laws, the chief ones being copyright and design laws. Designs can also be protected by patent and trade mark laws and in some Member States by utility model laws and unfair competition law. This contribution will focus only on copyright and design laws. After having introduced the protection for designs in the EU by design rights, section 1 summarises and comments on the Doceram decision. Section 2 then explains how copyright protects designs and then comments on the Cofemel and Brompton cases. Section 3 proposes solutions raised by these decisions before the chapter concludes.