generate a specific, aesthetically significant visual effect. Nevertheless, reading the ruling and looking to what was proved in the main proceedings, it is not clear why the designs of G-Star could not be protected as individual creations of Their authors, reflecting their personality and freedom of choices, and why the creations were not recognized as being identifiable with sufficient precision and objectivity. The reasons for the ambiguous decision seem to be in the subtext conveyed by the CJ, which, in a certain way, defies the standard promoted. 6.2. What happened after Cofemel? After the CJ Cofemel ruling, many cases came before the courts of EU Member States with different rulings, and the CJ ruled in the Brompton Case of 11 June 2020. 6.2.1. The Brompton Case In the Brompton Case,65 of 11.6.2020, in which the aesthetics of a folding bicycle was at stake, the CJ reaffirmed the criteria of the Cofemel Case, stating that if a subject matter has originality, it can also benefit from the protection granted by copyright, even it has a functional character, provided there is space of freedom, that is, if it the technical constraints do not prevent the author to make free and creative choices. If the shape is determined only by technical constraints, rules, or other limitations that don’t leave space for creative freedom or leave such a short margin that there is confusion between the idea and its expression, there cannot be copyright protection. The CJ repeated that the technical character of a product doesn’t prevent copyright protection. If we are before an individual creation of the author, able to reflect the author’s personality, manifesting their free and creative choices (which corresponds to the concept of “originality”) and manifesting itself in an object identifiable with sufficient precision and objectivity (that is, that may be considered a “work”) there can be copyright protection.66 65 CJ ruling of 11.06.2020, SI, Brompton Bicycle Ltd v. Chedech/Get2Get, ECLI:EU:C:2020:461. The decision was this: “Articles 2 to 5 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the copyright protection provided for therein applies to a product whose shape is, at least in part, necessary to obtain a technical result, where that product is an original work resulting from intellectual creation, in that, through that shape, its author expresses his creative ability in an original manner by making free and creative choices in such a way that that shape reflects his personality, which it is for the national court to verify, bearing in mind all the relevant aspects of the dispute in the main proceedings”. 66 About this case see, SILVA, P. SOUSA e, “Tutela Justautoral...”, cit., pp. 184.185; ROCHA, “Proteção autoral…”, RRDDIS cit., pp. 102-103. 245 HOW TO PROTECT FOOD PRESENTATION BY INTELLECTUAL PROPERTY
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