The criminal division states that since the defendants had “brought no evidence of such a nature as to call into question the innovation or individual character of the handbag model”, “the court (…) did not itself have to find whether or not the registered handbag model was new and had characteristics determining originality”.
Two observations can be made. 1/ The design is an asset, and it is up to the person who disputes the conditions of innovation and individual character to prove their absence so that the court can rule. The judge, even a criminal judge, is not required to investigate this point. 2/ The court can be accused of lacking rigour when it refers to the “characteristics determining originality”. Individual character and characteristics determining originality are two distinct concepts, although very close, but interpreted differently. The courts and the court of appeal have recently issued these decisions which refuse copyright protection, but accept it for the same creation on the basis of design law. It would therefore be preferable for the court of appeal to avoid any ambiguity.
