C-219/09

Vitra Patente AG v High Tech Srl

This case, referred by the Milan District Court (Industrial and Intellectual Property Chambers) raises similar questions to those raised in C-168/09 (Flos SpA v Semeraro Casa and Famiglia SpA), and the Court of Justice has stayed proceedings until delivery of judgment in that case.

The applicant, Vitra Patente AG, claimed copyright in the “Panton Chair” design. The defendant claimed that the design had passed into the public domain. Although recent law had extended the duration of copyright protection for designs, this did not apply to designs which had entered the public domain before a certain date. The referring Court seeks guidance on the extent to which Member States have discretion in this area.

The case raises the following questions which have been sent to the European Court of Justice for a preliminary ruling

• Must articles 17 and 19 of Directive 98/71/EC be interpreted as meaning that - in implementing a national law of a Member State adjusting the domestic legal order to the abovementioned Directive - the discretion afforded to such a Member State to establish independently the extent to which, and the conditions under which, such protection is conferred may include discretion to preclude such protection in the case of designs which - albeit meeting the requirements for protection laid down in copyright law - fell to be regarded as having entered into the public domain before the date on which the national implementing legislation entered into force, in so far as they have never been registered as designs or in so far as the relevant registration had expired by that date?
• If the answer to the first question ins in the negative, must Articles 17 and 19 of Directive 98/71/EC be interpreted as meaning that the discretion accorded to the Member State to establish independently the extent to which, and the conditions under which, such protection is conferred may include discretion to preclude such protection where a third party - without authorisation from the holder of the copyright on such designs - has already produced and marketed in that State products based on such a design which were in the public domain before the date on which the national implementing legislation entered into force?
• If the answers to the first and second questions are in the negative, must Articles 17 and 19 of Directive 98/71/EC be interpreted as meaning that the discretion accorded to the Member State to establish independently the extent to which, and the conditions under which, such protection is conferred may include discretion to preclude such protection where a third party - without authorisation from the holder of the copyright on such designs - has already produced and marketed products based on such designs in that State, where protection is precluded for a substantial period (a period of 10 years)?