The Court of Appeal of Lisbon, on 18 May 2021,71 in which the alleged copy of a design of a passenger shelter of the Larus Company was at issue, decided in a similar way. To protect the design passenger shelter by copyright, it would have been necessary to prove that the same was included in a creative project of expression and was personal interpretation of the object at issue transcending its functional vision. The aesthetic effect that the Court recognized in the passenger shelter was not sufficient to support this understanding. Beyond the requirements for protection of design by industrial property, that is, novelty and individual character, copyright protection demands the subject matter to be the result of an individual creation of the author that reflects their personality, because the author makes free and creative choices. The Court of Appeal, in this judgment, quoted both Cofemel and Stabilo and denied copyright protection.72 The Court of Appeal of Lisbon, on 18 May 2022,73 delivered a judgment involving the trademark and design “CAVALINHO”, where the plaintiff sought to protect the drawing of a horse through copyright. The Court denied protection. Referencing Cofemel, the Court held that partial cumulation is possible if we are before copyright protected work, which implies that the subject matter at issue reflects the personality of the author, their free, arbitrary, and creative choices, and that it is identifiable with sufficient precision and objectivity. In this case, there was no evidence in relation to the authorship of the subject matter at issue. The Court could not establish if the author was an artist, a designer, a craftsman, a worker of the company, a team, or an anonymous artist. Not knowing who the author might be, the Court could not conclude whether the design reflected their personality. The requirement of originality was not fulfilled.74 As for the second requirement, the aesthetic effect of a design or of a distinctive sign of commerce is subjective, experienced by everyone who looks at it. The subject matter here was not identifiable with sufficient precision and objectivity to be qualified as “work” under the InfoSoc Directive.75 For these reasons, the Court decided that the design of a horse, used in the distinctive signs and design patterns of the appellant could not qualify for copyright protection under the CDADC.76 71 Proc 146/20.9YHLSB.L1 (Rel Isoleta de Almeida Costa), Larus—Artigos para Construção e Equipamento, Lda v. Bricantel—Comércio de material elétrico de Bragança, SA e outros (dgsi.pt). 72 See II-B of the decision. The Court also stated that there was no evidence in the process to determine who could be the author (the designer or the company) for the purpose of art 14 CDADC, related to works made for hire (see II-A of the decision). 73 Proc 286/21.7YHLSB.L1-PICRS (Rel Paula Pott) in: dgsi.pt. 74 See para. 103 of the decision. 75 See paras. 101–04 of the decision. 76 See paras. 103–05 of the decision. 248 MARIA VICTÓRIA ROCHA
RkJQdWJsaXNoZXIy MTE4NzM5Nw==