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Decision of the Supreme Court of Cassation, I Civil Division (Suprema Corte di Cassazione, Sezione I Civile) 13 November 2015 – Case No. 23292/2015

  1. 1.

    In order for an industrial design to enjoy copyright protection, in addition to a creative character, Art. 2(10) of the Italian Copyright Act requires a quid pluris, the “artistic value”, which the judge shall assess on the basis of the proof offered by the party who demands protection and, if needed, with the technical advice of a court-appointed expert witness.

  2. 2.

    In assessing the “artistic value” of the design, under the circumstances of the case, the judge shall consider objective factors, such as:

    1. (a)

      the recognition the design has received in the relevant cultural and institutional circles, revealed inter alia by the exposure of the work in museums and exhibitions, the publication in non-commercial dedicated journals, the participation in artistic events, the awards received, the reviews of experts in the relevant field, etc.;

    2. (b)

      the commercialization of the design in the art market and not just in purely commercial markets, or the higher value gained by the design in the purely commercial market;

    3. (c)

      the creation of the design by a famous artist.

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Translated from the Italian by Marco Bellia. For a comment on this decison, see the case note by Marco Bellia in this issue of IIC at doi:10.1007/s40319-016-0521-6.

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Metalco S.p.a. et al. v. City Design S.p.a. Directive 98/71/EC on the Legal Protection of Designs, Art. 17; Copyright Law, Art. 2(10). “Metalco”. IIC 47, 859–862 (2016).

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  • Industrial design
  • Copyright protection
  • Creative character
  • Artistic value
  • Recognition
  • Commercialisation