sector. The CJ was faced with a dilemma. Regarding the concept of “originality”, it applied the criteria enunciated in Infopaq and subsequent case law. But the CJ, and especially AG Spuznar, knowing that this concept could lead to too broad a cumulation of copyright and design protection, felt the need to clarify that such cumulation is not the general rule, but rather an exception, applicable only in “certain cases”, with a clear subtext reading “but not in a case like this”.56 The AG claimed that this could be inferred from the idea/expression dichotomy that governs copyright. He held that characteristics such as the “specific composition based on shapes, colours, words and numbers”, the “combination of colours”, the “placement of the pocket on the stomach”, or “the way the jeans are made by assembling the three pieces”, which Cofemel was alleged to have copied, should be considered as ideas capable of being expressed differently, or even as practical solutions, and should not be protected by copyright (para. 60). By relying on the innovative and unique (at that time) character of its G-Star Elwood design, which was introduced in 1996, the AG considered that it seemed that G-star was seeking copyright protection for its reputation and distinctive character of its goods, which are normally protected as trademarks (para. 61). Though the infringement of copyright exists even if only parts of the work are reproduced, they must contain elements that are the expression of the intellectual creation of the author’s work.57 That is not the case when the copied elements are merely inspired by the ideas expressed by the work. Though the assessment of whether the elements are ideas or parts drawn from the work must be carried out by the national court on a case-by-case basis, in the context of that assessment, that court must grant that the subject matter in respect of which protection is sought is sufficiently identifiable (para. 61).58 Copyright differs from design protection. An exclusive design right is being infringed, in line with the wording of article 10(1) CDR, if a design does not produce on the informed user a different overall (visual) impression. The concept of the overall (visual) impression is completely alien to copyright (para. 63). Copyright protects a specific work, not a work which has a visual aspect that causes a different overall (visual) impression. Copyright does not require objective novelty. Parallel creations, provided they are original, are lawful and enjoy full protection as separate works. The same is true if a creation is inspired by earlier works. If that 56 See the wording in KUR, op. cit., p. 6; see also CARBAJO CASCON, “La protección de los diseños de moda en la Unión Europea”, cit., p. 153. 57 In this paragraph, the AG refers to C-5/08 Infopaq International, EU:C:2009:465, para. 39. 58 In this paragraph, the AG refers to C-310/17 Levola Hengelo, EU:C:2018:899, para. 40. 241 HOW TO PROTECT FOOD PRESENTATION BY INTELLECTUAL PROPERTY
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