6.2.2. Portuguese case law In Portugal there is already case law after the CJ Cofemel ruling, starting with the judgment of the Portuguese Supreme Court (STJ) in the case that originated the request for the preliminary ruling. The Portuguese courts, following the idea that there is a subtext hidden in Cofemel ruling, inicially became very strict. Only if the works of applied art are recognized as “artistic” by the experts in the field, there can be copyright protection (institutional criterion). In Cofemel Case, Portuguese STJ denied copyright protection to the G-Star designs. In the main proceedings67 the essential question was whether the “ARC” jeans design and the graphic design incorporated into the “ROWDY” sweatshirts and t-shirts, both belonging to G-Star and imitated by Cofemel, under the trademark “Tiffosi”, which were not protected by industrial property, could be protected as works according to Portuguese copyright. To ascertain whether the subject matter at issue could be considered copyright protected work, the Supreme Court followed entirely the ruling of the CJ ((nº 11 of the STJ decision, 62-67). It was proved that the G-Star “ARC” design is characterized by the way each of the three denim modules of different lengths and shapes is cut and assembled. Using such modules of different lengths and shapes, a leg with a 3D effect is created, folding in and back, and thus twisting around the user’s leg (twisted leg effect); further contributing to this effect are the darts included in the model for the placing of the knee, one on each leg. The “ARC” design is characterized by the alluded design with 3D effect and its leg cut with twisted leg effect, resulting from the position of the assembled three modules, the vertical position of the seams, and the seams on the back of the knees in the form of darts. Nevertheless, the G-Star design of the “ARC” jeans, created by designers Rixt van der Trol and Pierre Morriset, working for G-Star, according to the STJ, could not be protected by copyright because they were not appropriable. Regarding the fashion industry, clothes, ideas, and concepts are often expressed in fashion trends, or in a common fashion fund, part of the public domain, thus they cannot be protected by copyright. The STJ considered the “ARC” design elements as trends, thus not protectable by copyright. The same applies to the G-Star design of the T-shirts and hooded sweatshirts “ROWDY”, created by designer Ruud de Bruin, who also works in the design department of the company. These designs include several elements in their composition, namely 67 Judgment of 15 January 2020, G-Star Raw CV v Cofemel—Sociedade de vestuário (STJ Proc. 268/13.2YHLSB.L1. S1). 246 MARIA VICTÓRIA ROCHA
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