the image stamped on the front of the T-shirts and hooded sweatshirts, the colour scheme, the numbers, and the placement of the pockets. Though G-Star invests in unique and innovative design, with new materials, cuts, and styles, that does not mean that the designs conceived by the company’s designers qualify for protection as works by copyright. Even if they are new and have a singularity, that is not enough for copyright protection; nor is the visual striking effect from an aesthetic point of view, namely achieved by the “ARC” jeans or by “ROWDY” T-shirts and hooded sweatshirts (nº 11 of the STJ decision, 67-72). The STJ considered that the case law of the CJ harmonized the concept of “originality”, but annulled the decision of the Court of Appeal of Lisbon, ruling that the designs at issue could not be classified as works according to Article 2, nº1 (i) CDADC in an interpretation consistent with EU law, maxime with the InfoSoc Directive (nº 12 of the STJ decision, 76-77). Thus, Cofemel won the case in the Portuguese Supreme Court of Justice. The CJ ruling went too far, giving this guidance to STJ in relation to facts. The STJ was in some way bound by the indications wrongly given in the specific case by the CJ in its preliminary ruling, clearly pointing to the effect that the design of the clothing at issue could not be classified as “work”.68 The Court of Appeal of Lisbon, in a judgment of 21 April 202069 in which an alleged imitation of markers of the well-known trademark “STABILO BOSS” was at issue, decided that the protection of the design of “Stabilo PEN 68” by copyright is only possible if we are looking at a work. This was not the case. Quoting the Cofemel decision, amongst others, and stressing that Portugal has a partial cumulation, but going beyond Cofemel, the Court of Appeal considered that artistic work is not just a creation of someone’s intellect. Besides being original, it must involve intellectual work, going beyond the commonplace, and enriching the available cultural framework and must be recognized by art experts as such (institutional approach).70 68 See the in-depth analysis of CARBAJO CASCÓN, “La protección de los diseños de moda en la Unión Europea”, cit., pp. 151–156; SILVA, P. SOUSA e, “Tutela Jusautoral de Obras de Design na esteira do Acórdão Cofemel”, cit., p. 184. 69 Proc 279/18.1YHLSB.L1-PICRS (Rel Ana Pessoa), dgsi.pt. In this case, Shwan-Stabilo Schwanhausser Gmbh & Co KG brought an action against Branco e Negro, Lda and Clave Denia, S.A., amongst other reasons, because the latter companies produce, distribute, and sell in physical stores in Portugal, named Ale-Hop, and on the internet, pens that copy the design of Stabilo Pen 68, allegedly protected by copyright (amongst other intellectual property rights). 70 See 30–34 of the decision. The Court quotes SILVA, P. SOUSA e, “Desenhos ou modelos no novo CPI…”, cit., p.198 and p. 202. 247 HOW TO PROTECT FOOD PRESENTATION BY INTELLECTUAL PROPERTY
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