It is crucial to know whether and when design may be protected by copyright, namely because copyright grants much longer protection and does not require any formality to arise. Regarding works of applied art, such as the signature dish in its threedimensional presentation, there were always doubts about the standards of originality necessary for copyright protection. Article 96, nº2 CDR and Article 17 CDD point towards a partial cumulation of protections, though traditionally the French system approaches the total cumulation of protections38, the German system has been very strict, demanding a higher degree of originality (the so called, now abandoned, Gestaltungshöhe) in order to allow cumulation of protections39, and the Italian system, as others, before the EU legislation did not allow cumulation of protections.40 Since the Flos Case, this last option has been denied by the CJ.41 Thus, in the EU, the choice is between a partial cumulation or an almost total cumulation of protections. In Portugal, case law, before the Cofemel preliminary ruling42 was erratic and unpredictable because Portuguese scholarship had (and still has) divergent approaches regarding the concept of “artistic” creation under Article, 2, nº1 (i) CDADC. Article 2 provides a non-exhaustive list of protectable subject matter, including in section 1, subparagraph (i) “works of applied art, of protections of design and copyright was Article 200 of said CPI (repeated in Article 194 CPI 2018), the Court of Appeal ruled that cumulation of protections was only possible when the design is registered. That interpretation is wrong. Article 96(2) CDR allows copyright protection to any design protected by the CDR, regardless of whether it is registered or unregistered (the latter is protected under Article 11 CDR). In Portugal, the cumulative protection of unregistered Community designs is inevitable because of CDR. Article 194 CPI 2018 cannot be understood by considering only the wording of the provision. Recent amendments of the CDR and the new Directive on EU Design reflect this idea. About unregistered design, see LOUREDO CASADO, Sara, El Diseño Industrial no Registrado, Aranzadi-Thomson Reuters, 2019, p. 237 ff. 38 In France the principle that art entails a unitary concept, and that one should not distinguish pure art from applied art, for the purpose of protection, always prevailed. The French system is based in the position of POUILLET, E., Traitè Théorique et Pratique de la Propriété Litéraire et Artistique et du Droit de Représentation, 1 ed., 1879 and Traité Théorique et Pratique des Dessins et Modéles, 1 ed., 1868, though misinterpreted by the French courts. See, ROCHA, “Proteção autoral…”, cit., RRDIS cit., pp.76-77. 39 The German system is based in ULMER, E., Urheber und Velagsrecht, Springer, Heidelberg, p.111 ff. With more detail, ROCHA, “Proteção autoral…”, cit., RRDIS, pp.77-78. 40 On these three systems see SILVA, Pedro SOUSA e, Direito Industrial. Noções Fundamentais, Almedina, Coimbra, 2022, pp.163-168; GONÇALVES, Luís Manuel COUTO, Manual de Direito Industrial, 11ª ed., Almedina, Coimbra, 2024, pp. 164-169; ROCHA, above mentioned “Proteção Autoral…”, RRDIS cit., pp.74-83. 41 C-168/09, Flos SpA v. Semero Casa e Famiglia SpA, paras. 36, 37, 38. With more detail, see, ROCHA, “Proteção autoral...”, RRDIS cit., pp. 83-84. 42 C-683/17 Cofemel v G-Star Raw, EU:C:2019:721. 235 HOW TO PROTECT FOOD PRESENTATION BY INTELLECTUAL PROPERTY
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