be protectable work the subject matter at issue must also be expressed in an identifiable subject with sufficient precision and objectivity. In this case, the Court of Appeal of Lisbon stresses that originality is a subjective concept, allowing parallel creations, and considers that the institutional criteria (of the three former cases of the Court of Appeal of Lisbon) is far from being essential. In Case Design Lava BV,80 regarding a design that the plaintiff uses and sells on its mattresses, of 02.05.2025, the Court of Appeal of Lisbon emphasized that the originality is a legal concept, not an artistic one. What must be proved is that there is originality and that the design is a work. There is no need for recognition by the artistic circles (cf. specially nºs 45, 46, 47, 48). The Court stresses that what is important is that originality and work, as recognized by the CJUE in Cofemel exist in the subject matter in question. Once again, the Court abandoned the institutional criteria. As we can see, not even in Portugal the Cofemel concepts are nowadays interpreted in the same way by the Courts. 6.2.3. Case law in the EU Member States In the EU Member States, the rulings continued to diverge, though the CJUE had considered in Cofemel Case that the concepts of “originality” and “work” were harmonized concepts of the EU. And this, though the national courts repeated the Cofemel standards. In the UK, in the Case Response Clothing, the ruling from the Intellectual Property Enterprise Court of 21.01.2020 considered that a tissue pattern for women’s blouses could be considered a work according to the Cofemel criteria. The national courts cannot treat in a different way works of pure art and works of applied art. One cannot be demanding in terms of originality. The pattern didn’t exist before and was the result of free and creative choices of its author.81 Referring to Cofemel Case, the Corte Suprema di Cassazione, in Case Kiko, ruling of 08.02.2020, qualified as work of architecture, subject to Article 5, nº2 of Legge sul Diritto d’Autore, the interior design of a shop of cosmetics. The Italian Court considered that the project reflected a unitary conception, adopting a defined and visual relevant scheme, revealing a clear stylistic approach 80 Proc. 371/23.0YHLSB.L1-PICRS (Rel. Alexandre Au-Yong Oliveira). 81 Proc. IP-2017.000174 [2020] EWHC 148 (IPEC) case Response Clothing Ltd v. The Edinburgh Wollen Mill Ltd. About this case read The Bird and Bird Team “Fashion-related IP decisions round-up 2020”, Vol. 16, 6, June 2021, pp. 595-625; SILVA, P. SOUSA e, “Tutela Justautoral…”, cit., pp. 185; ROCHA, “Proteção autoral…” RRDDIS cit., pp. 104-105. 250 MARIA VICTÓRIA ROCHA
RkJQdWJsaXNoZXIy MTE4NzM5Nw==