Longchamp is making headway with the copyright protection of its Le Pliage bag. Supported by several international rulings and the judgment of the Den Bosch Court of Appeal of 14 August 2012 – in which the Court of Appeal ruled that the Le Pliage bag is a copyrighted work – this time round Longchamp demanded that Desigual cease selling a similar bag featuring a graffiti design.
The Oost-Brabant District Court, ruling in preliminary relief proceedings, concurred that the Le Pliage bag is protected by copyright. Desigual tried to argue that certain elements of the Le Pliage bag are of a purely technical nature or so mundane that they could never result in copyright protection, including the bag’s square box shape. The District Court nevertheless ruled that the technical elements in question leave ample room for creative choices, referring to the numerous bags available on the market that lack these elements. In the Court’s opinion, Desigual did not make it sufficiently plausible that the bag had degenerated into a style or into a mundane model.
The latter observation is striking. It would appear that the District Court made it in reference to the possibility of ‘copyright dilution’ after creation. It is true that there was uncertainty in the Netherlands for some time about whether the copyright to a design that has turned out to be so successful that it is spawning countless imitations, could dilute. The uncertainty was caused by the judgment of the Supreme Court of 8 September 2006 in the matter of G-Star v. Benetton. In this case, it seemed as if both Advocate General Verkade and the Supreme Court left room for such copyright dilution. The judgment sparked off a lively debate in the literature about this ‘trendsetter’s dilemma’, given that it implied punishing creators of popular designs for their own success by reducing the scope of protection. However, Advocate General Verkade and the Supreme Court made short work of that theory in the case of Stokke v. Fikszo (judgment of 12 April 2013) by ruling that the concept of dilution does not exist in current Dutch copyright law.
Back to the undiluted Le Pliage bag.
The Oost-Brabant District Court found infringement, considering that virtually all copyrighted elements of the Le Pliage bag are copied in the Desigual bag and, what’s more, the dissimilarities are too insignificant to give the Desigual bag a sufficiently different overall impression. Longchamp has an interest in a ban on future infringement, seeing that the cease and desist declaration drawn up by Desigual is less far-reaching than the commitment to which Longchamp is entitled in its capacity as copyright owner. The District Court also awarded the claim for a specification and the destruction of the infringing bags.
The judgment (in Dutch) is available here.